Month: December 2014

2015 and “Community Justice”


Our colleagues Charles J. Ogletree Jr. and David J. Harris recently wrote an op-ed for the Boston Globe.  As students trickle back to school and all of us consider how we want 2015 to be different from 2014, we thought some excerpts were worth posting from their important essay about how best to move forward to “produce real change.”

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“[C]ommunity justice” . . . . is a call for the active participation of communities that have, for too long, been largely dismissed in policy discussions that directly affect their health and well-being. It demands eliminating and replacing incentives in our justice system that reward arrests and overzealous prosecutions. For example, federal funds have encouraged police departments to concentrate on things like marijuana possession; doing so has not only fueled our astronomical rates of incarceration, but also the racial disparities that characterize our prison population. These incentives create the conditions under which police view entire communities with distrust or worse, and community inhabitants feel like they are under the rule of an occupying army, together fueling a cycle of incarceration, isolation, and alienation.

This system is not only wasteful and deeply harmful, it is also woefully outdated. . . . Imagine a public safety . . . system [that relied upon] enlightened and evidence-based programs that help communities to flourish, such as drug treatment, workforce development, innovative education, and comprehensive health care; . . . different pieces of the formal justice system, including restorative justice, ankle bracelets, drug courts, probation and — as a final resort — prison. . . . [T]he two sets of [policies] cannot be separated. Prisoners need to be linked to educational opportunities or drug treatment while serving sentences so that they will be ready for reentry to the community upon release. “Corrections” needs to rehabilitate rather than isolate and punish exclusively.

So how do we get from where we are today to community justice? First, we have to acknowledge and confront our own biases, individually and collectively. Recent work by Harvard Professor Mahzarin Banaji suggests that our biases can operate as much to favor those like us or for whom we have positive associations as they may operate against the “other.” This would certainly seem to be the case in terms of our habitual exclusion of certain communities in policy debates. For example, several years ago, the Massachusetts Legislature debated “three strikes” legislation that would mandate life in prison the third time a person commits a felony. Despite almost unanimous opposition from legislators of color to a bill that would disproportionately affect their constituents, the bill passed. It was as if the rest of the Legislature literally could not hear those voices.

Second, as the elder generation, we need to look to history to guide us. Indeed, we can’t move forward without revisiting our past. More than 150 years ago, in the infamous Dred Scott decision of 1857, the Supreme Court declared that a black man had no rights that a white was obligated to observe. It was a denial of both black humanity and black citizenship. Today, that decision is regarded as a stain and an abomination. And yet, aren’t traces of the same sentiments present in the seeming speed with which police officers shoot at young black men, in the way they tend to view black boys as adults, or in the animal imagery used by Darren Wilson to describe his encounter with Michael Brown? Until we acknowledge these links, we will never be able to overcome them.

Almost 100 years after Dred Scott, Charles Hamilton Houston — probably the most influential and least well-known civil rights lawyers of the 20th century — devoted himself to using the law to end racial discrimination and segregation. Houston was advised by his law professors to be more cautious and to focus on smaller, incremental goals. Fortunately, he ignored that advice and crafted the litigation strategy that yielded the unanimous Supreme Court decision Brown v. Board of Education, even though he died before he could see that strategy argued successfully in court. As we all know, it took years of continued struggle before the promise of Brown was memorialized in the civil rights laws of the 1960s.

As a nation, we have this habit of denying our own past, and of lulling ourselves into believing that every corrective step is the final step. That’s not how progress happens. There are leaps forward, periods of relative stability, and retrenchment. But our leaps forward are often precipitated by crisis, setbacks, and even bloodshed. That’s where we stand today. Our task is to make sure that the tragedies of Michael Brown, Eric Garner, and all of the other young men and women of color who have been unjustly killed and harmed by our current system become the impetus to push back hard against that system.

In Massachusetts, the stars are favorably aligned to produce real change. We have new leadership in Boston, in the State House, and in the Legislature. We have a growing grassroots movement advocating to reduce our prison population, end counter-productive mandatory minimum sentences, and reconsider the entire “tough on crime” era. The Houston Institute stands ready to contribute to these statewide efforts to develop and implement a new model for social service delivery, and to breathe life into the notion of community justice. We also call upon our the leaders of the region’s universities to harness the tremendous amount of expertise within their midst to serve the needs of our communities. We need to lock arms with our students, as well as the thousands of people taking to the streets across the country, and demand not just an end to the status quo, but the beginning of something “more.”

Related posts from The Situationist:

Related projects from Frontier Torts:

The Systems Serial Missed

Serial Logo

Last week concluded Sarah Koenig’s captivating 12-week podcast, Serial, which will go down as one of the things many of us remember most about 2014 and about the workings of our criminal law system.

Also in 2014, the criminal law system was itself the subject of a great deal of attention — most of it negative.  And yet the  news stories, protests, and themes related to the events unfolding in Ferguson and Staten Island, for instance, somehow did not overlap with the dubious conviction of Adnan Syed?

Is it because they are not connected?

In November, Josie Duffy a racial and economic justice lawyer in Brooklyn and a friend and former student of mine brought the two topics together, at least implicitly, in her powerful critique of Serial.   Duffy took Koenig to task for overlooking the larger systemic forces at work in the Syed trials — some of the very forces that were made salient by the grand jury determinations regarding the Michael Brown and Eric Garner killings.

Behind the pretense of journalistic thoroughness and fairness, Duffy argues, Koenig was actually being careless and unfair.

Clearly there was a lot to like about the first volume of Serial, and I count myself among the millions eagerly anticipating next season’s series.  Nonetheless, Duffy’s focus on the system itself strikes me as critically important and fitting.  If this country is going to have the sort of meaningful national conversation that it needs to have in order to bring about significant and sustained reforms, first-rate journalists need to do their part to help to shift the focus away from the compelling individualistic narratives and futile character assessments and toward the larger trends and pressures in which people operate. Or, at least, they need to do more of the latter.

Here are a few excerpts from Josie’s article:

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[T]here are critical questions Koenig’s not asking, and we need to talk about those. She’s focused almost entirely on the details of the crime, peripherally sketched out some details on the criminal, but failed miserably to examine the failures of the process.

This is where her reliability starts to unravel. You can’t be fair without context.

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What does seem clear to me, though, is that there was rampant and serious misconduct by Baltimore law enforcement. It seems impossible that, as a defendant, Adnan got within the realm of a fair shake here. And even if law enforcement’s shady behavior didn’t rise to illegal misconduct, there’s a reasonable possibility that it could have had a tangible effect on the outcome. The police ignoring Jay’s inability to stick to his story, the disappearance at trial of an entire portion of his story, the prosecutor quickly hushing one of their primary witnesses before she says something that stands in direct opposition with the theory they’re presenting—each of these, handled differently, could have imparted much more reasonable doubt into the minds of the jurors.

This behavior is startling but not unusual—this is how the criminal justice process works. More often than not the things that explain the various players’ motivations happen after the crime. They happen once the police get involved, threaten sentences, make deals, elicit confessions. It happens when prosecutors cover up part of the story and defense lawyers throw cases and a man involved in a murder gets to walk if he talks.

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How can you tell a story about a convicted criminal without talking about the system that convicted him?

You can’t tell us Adnan’s story without talking about what it means to be a defendant in a courtroom in 1999, as America was putting the finishing touches on its most incarceratory decade yet. Over 350 new state prisons built in one single decade, each quickly filled to capacity. This is when incarceration was accelerating disconcertingly fast but before any of us were talking about it.

And Baltimore at that time. Jesus. Grim and poor and punitive. More than half of young black men in the city were in the criminal justice system—if they weren’t incarcerated they were on probation or parole.

That “more than half” thing is incomprehensible. And it matters here. It matters because Koenig doesn’t seem to know it. When, in episode 7, Deirdre says, “I’m a little concerned about racial profiling here, you know?” Koenig replies with surprise, “Oh really?”

Even apart from race, this statistic matters because of sheer numbers. That’s a remarkably high body count that Baltimore was moving through the assembly line. It’s even crazier because of what the prosecutor’s office looked like in 1999.

Koenig doesn’t talk about Baltimore. But Baltimore matters.

Just a few days before the murder, Baltimore’s head prosecutor had to publicly apologize after two men accused of murder were released when the city accidentally failed to try their cases. In this apology she described her office as “totally overwhelmed,” asked for a budget increase of $8 million—over 50%—or else she wouldn’t be able to do her job properly, and was rejected by the Mayor.

This happens again, by the way. It happens a few times—serious violent criminals getting let out because the prosecutor’s office was too overwhelmed to process cases in a reasonable time. People are all over the Baltimore Sun calling the office incompetent, expressing disgust.

Fast-forward a few months to early March, a few days after the police wake Adnan up in the middle of the night and take him to the station. In trying to stem a cavernous deficit the city came for police officer’s overtime hours, hours often spent in court over charges they’d issued. These charges usually didn’t hold any weight—60% percent were dismissed—and it was wasted time of the cops and the court. So the city changed the whole process, instead giving the struggling State Attorney’s office the role of deciding the validity of police-issued charges, burdening the prosecutors with more work but granting them more power.

Meanwhile there were still thousands of cases to be handled and defendants in jail awaiting trial.

And Baltimore’s prosecutors, stretched impossibly thin, still managed to convict or plea out an astronomical number of young black men in the city. Including Jay, who pled out and got a few years probation.

Think about this. In early 1999, the prosecutor’s office was a public relations nightmare. They had no time, no money, but more charging power than ever. Plus they must have had tactics—after all, they were putting a shocking amount of people away while vastly under-resourced.

And then two months after a girl disappeared, someone is pointing to the boyfriend. That’s open and shut, quick and clean. I don’t think it’s crazy to consider the fact that the police were overlooking Jay’s six remixes to his own story to get a win and get it off their desk. . . .

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Read Josie’s entire article here.  She blogs at The True Fight and tweets at @_johelen.

Links to some related articles investigating the investigator who is investigating the investigators:

  • An article about the larger inequities in our criminal justice system that Serial misses here.
  • An inventory of Serial backlash here.
  • A defense of Serial against the backlash here.
  • And, finally, an inventory of the backlash and defenses here.

George Stinney and the Lessons of History

Stinney 260

Last week a South Carolina judge took the unprecedented step of vacating the 1944 conviction of a black 14-year-old boy, the youngest person executed in the United States in the past century, on the grounds that he, George Stinney, Jr., did not receive a fair trial.  The boy had been accused of beating two white girls to death in the tiny town of Alcolu, South Carolina.

After the  bodies of the two  girls, Betty June Binnicker, 11, and Mary Emma Thames, 7,  were found, the rural community was hungry for vengeance.

Understandably.  The young girls had been collecting flowers — maypops — to give to their teacher when they went missing. Searchers found their bodies the next morning, their heads crushed, lying in a ravine piled behind brush and beneath their bicycle.

The Case

History has not looked kindly at the process and outcome that unfolded in response.  Young George Stinney, who was participating in the search told others that he and his sister had seen the girls on the day they were murdered.  Shortly thereafter, he was taken into custody — and held for five days without being arrested. He was separated from his parents and would never see his family again.

Although there was no physical evidence connecting him to the crime, authorities claimed that he confessed to killing the girls by bludgeoning them with a 12-inch railroad spike and sexually assaulting one of them.

The trial took place on April 24.  It lasted less than three hours.  The jury — all white men — deliberated for 10 minutes.  Of the proceedings and Stinney’s confession, there is no record.

The guilty verdict (with no recommendation for mercy) was a foregone conclusion. Stinney’s court-appointed lawyer did not move for a change of venue.  He did not call any witnesses on his client’s behalf.  He did not, for instance, call any of George’s siblings, who would have testified that their brother George could not have killed the girls because they were with him the entire day.  He did not call Reverend Francis Batson, who found the girls and pulled them from the ditch and who saw little to no blood in or around the ditch, suggesting that the girls may have been killed elsewhere and moved.

Nor did Stinney’s lawyer cross examine any of the prosecution’s witnesses.

Stinney’s attorney made nothing of what lawyers today emphasize about the evidence:  that there was no physical evidence to link Stinney to the crime and that it would have been a “physical miracle” for the small boy to singlehandedly overcome the two girls, murder both of them, and drag them from their bicycle to the ditch where they were left.

Stinney’s lawyer also never challenged the conditions around the alleged confession.

Except for young George, everyone in the packed courthouse during the brief trial was white.  Even George’s parents and family were excluded.  Meanwhile, outside the courthouse, a mob of up to 1500 people gathered in anticipation of a quick result.

Following the verdict, a mob of white men amassed at the local jail with hopes of lynching Stinney, but the boy had already been transferred to the Columbia penitentiary. The mob would not have to wait long for his brutal death.

No appeal was filed.


George’s family was powerless.  George’s sister recounts:

“My mother cried and prayed . . . . We wanted the truth to come out.  But sometimes when you don’t have the means and the money you accept things for what they are.  The NAACP tried to stop it, but it was no use. In those days, when you are white you were right, when you were black you were wrong.”

Olin Johnston Governor SC

Governor Olin Johnston

Their powerlessness was born of the interlocking effects of race and poverty.

Sourcing the Death Penalty Information Center, Jeffery Collins writes: “South Carolina executed 59 people in the 1940s. Fifty of them were black . . . .”  Thus, when South Carolina’s black population constituted just 43 per cent of the total population, black inmates made up 85 percent of the victims of capital punishment.

Such numbers then failed, like similarly skewed statistics today fail, to give lawmakers pause.  (About two-thirds of South Carolina’s prisoners today are black, as are 27 of its 46 inmates currently sitting on death row.)

Local churches and the NAACP, pleaded with South Carolina’s Governor at the time, Olin D. Johnston, to stop the execution and commute the sentence to life imprisonment, citing Stinney’s age as a mitigating factor. Some letters cited a then-recent case, where a 16-year-old white boy from Parish Island was given a 20-year sentence for murder and rape.

One letter put it this way:  “Child execution is only for Hitler.”

Others begged for a new investigation and trial. Many spoke of the war, in which black and white men were fighting and dying in equal numbers for their country.

Governor Johnston, who was running for the U.S. Senate at the time, wrote a letter to one of his upset constituents just days before the execution in which he made several assertions that were based on the “confession” though otherwise baseless: “It may be interesting for you to know,” he wrote, “that Stinney killed the smaller girl to rape the larger one. Then he killed the larger girl and raped her dead body. Twenty minutes later he returned and attempted to rape her again, but her body was too cold. All of this he admitted himself.”

Governor Johnston also artificially distanced himself from the young boy’s fate by claiming that he “had nothing to do with the matter — pointing to “the judge, the jury, and the solicitor.”  He also claimed, without support, that the “colored people . . . would have lynched this boy themselves had it not been for the protection of the officers.”

Johnston’s argument seems to be that  the evidence clearly incriminated  young George, that the boy was a monstrous rapist, that the arrest and verdict was not about race, that  the state had somehow done the boy a favor by protecting him from his own people, and that, in any case the the boy’s fate was beyond the governor’s control.  Such was the twisted logic of a politician seeking higher office in the Jim Crow South: please the majority of constituents by allowing the race-and-revenge-fueled legal lynching and placate the critics by pretending that the result was out of his control and better than the alternative.

Johnston was not the only key actor vying for potential votes at the time. Charles Plowden, George’s appointed defense attorney, was also running for the statehouse.  He, too, had much to gain by providing a legitimating but anemic defense and by helping to ensure a result that would satisfy the bloodthirsty urge of his most important potential voters.

As one history of the case put it, Plowden’s “goal in the case was simple: to provide a bare bones defense that would fulfill his responsibilities as a defense attorney and, at the same time, not anger the local residents.”

Years later, when Plowden responded to a question about why he didn’t appeal the case, he stated: “There was nothing to appeal on” and added the Stinney family had no funds to continue the case.

George Stinney, center right (with Bruce Hamilton, 21, center left) both enter the death house in the state prison in Columbia, where they were executed

George Stinney, center right (with Bruce Hamilton, 21, center left) both enter the death house in the state prison in Columbia, where they were executed

The Execution

George Stinney, Jr. was put to death in the electric chair on June 16, 1944.

Arrest, confession, trial, conviction, and execution, all within just 83 days.

Done, done, done, done, and done!

On the day of his execution, seventy years ago, George Stinney was 14 years and 5 months old.  He was small for his age,  barely topping five feet and and ninety pounds.  As he was led to the electric chair, he carried a Bible under his arm.   Climbing in, it became clear that the chair’s straps and contraptions were all too big for him and had to be adjusted and re-rigged.  His feet dangled from the chair and the bible doubled as a booster seat so that the apparatus could reach his head.

As was generally the case with such electrocutions, a mask was placed over the victim’s face to spare the audience from seeing the facial contortions of pain and, potentially, flames.  In Stinney’s case, the “death mask” was too large and fell off when the first 2400-volt surge of electricity was unleashed, revealing tears streaming from Stinney’s eyes and the horror of a small boy being internally burned — brain, heart, and organs.

The Aftermath

The day after Stinney’s execution, a local newspaper carried a three-inch article, which contained the following line “Stinney, 14 years and five months old, was the youngest person ever to die in the chair.”

The story made no dent in national headlines, owing, at least in part, to the unfolding of other events. In June 1944, most people were focused on the beaches of Normandy, where a million Americans were locked in the battles of D-Day. Newspapers carried graphic stories of death and destruction unparalleled before or since. Most Americans were preoccupied by the global contest and had little compassion to spare for a black teenager who monstrously murdered two young white girls.

Locally, though, the dominoes of racial injustice continued to topple.  Stinney’s father was fired from his job at the town’s lumber mill.  As one of George’s brothers recently put it: “They had no money, the law was against them and they were black in the American south in 1944.”  And, amid rumors of a mob coalescing, the Stinney family was driven from the town.

For many in the community, the death of George and the banishment of the Stinney family no doubt brought a sense of comforting closure.  As far as they were concerned, a heinous murderer had been dispatched and justice had been served.

But justice rushed, like justice delayed, is justice denied.  The legal process and outcome that characterized the Stinney trial, in fact, seems functionally indistinguishable from the lynchings that defined Jim Crow race relations;  instead of the criminal law system being merely complicit with racial injustice, the criminal law — and its veneer of legitimating legal process — was the primary instrument of that injustice.

The tragedy would not only devastate the Stinney family, it would help reinforce and maintain the shadow of terror that demarcated the power relations between blacks and whites in the region.  It illustrated both the consequences and causes of white supremacy.  It served as an act of subordination and as a reminder of what would happen to someone who resisted his place in that hierarchy.   That is, for a member of the black community to openly question the outcome, to revisit the case aloud, would be viewed by those in the white community as an act of aggression — a challenge to the system — that would be met with violence reinforced by the law.

Revisiting the Case

Last year, members of Stinney’s family petitioned for a new trial.  They old wound hadn’t healed, despite a lifetime of distance and distancing, from the day and place of George’s brutal death.  Even decades later, they felt that there was something to be gained from a new case.  Said one of his siblings: “Nothing will bring him back and nothing will bring those girls back;” nevertheless, it was still “important to have his name cleared.”

Advocates for Stinney and his family argued that newly discovered evidence — and the rush-to-judgment process of the original trial — justified reopening the case. There had been numerous irregularities in the process. For example, one of the searchers for the girls was a member of the family that owned the land on which their bodies were ultimately found, was signed as a witness on the indictment form, was a member of the grand jury, and was later appointed foreman of the jury at the coroner’s request.

In January, Judge Carmen Mullen, a circuit court judge for the Fourteenth Judicial Circuit in South Carolina, heard the testimony of three of Stinney’s surviving siblings and several expert witnesses.  They all provided alibi evidence showing that 14-year-old George could not have committed the double homicide.

Judge Carmen Mullen

Judge Carmen Mullen

In her ruling last week, Judge Mullen emphasized she was not overturning the case on its merits.  Relitigating the case would have been, in light of the scant record, all but impossible.   She did not, based on the record before her, assess whether George Stinney was or was not guilty.  Instead, Judge Mullen based her decision to vacate the earlier judgment upon the failure of the original court to grant Stinney a fair trial: “No one can justify a 14-year-old child charged, tried, convicted and executed in some 80 days.” Summarizing those events, she said: “in essence, not much was done for this child when his life lay in the balance.”

The Confession

According to Judge Mullen, it was “highly likely” that Stinney’s confession, the core of their case against George Stinney, was coerced.  She pointed out the sizeable “power differential between his position as a 14-year-old black male apprehended and questioned by white, uniformed law enforcement in a small, segregated mill town in South Carolina”:

“Based on the facts presented in this Court . . . methods employed by law enforcement in their questioning of the defendant may have been unduly suggestive, unrestrained and noncompliant with the standards of criminal procedure as required by the Fifth and Fourteenth Amendments.”

He was not informed of his rights, he was not accompanied by a lawyer, and he was without his parents. “A 14-year-old boy cannot confront his accusers,” Mullen wrote. “He needed his lawyers to help.”

Wilford “Johnny” Hunter, a cell mate of Stinney’s came forward to testify that George had told him while they both were in jail in 1944 that “he didn’t kill those girls, and that they [police] made him say those things.”

Dr. Amanda Salas, a child psychiatrist trained as a forensic psychiatrist, testified that Stinney’s alleged confession was “not reliable”:  “It is my professional opinion, to a reasonable degree of medical certainty, that the confession given by George Stinney Jr. on or about March 24, 1944, is best characterized as a coerced, compliant, false confession.”

According to journalist Karen McVeigh, there were reportedly two inconsistent confessions by George Stinney, both of which were entered as evidence at trial:

In the first, he said he was approached by the girls who attacked him after he tried to help one who had fallen into a ditch and he struck them in self-defense. In the second version, he had followed the girls into the woods and first attacked and fatally wounded Mary Emma, to “get her out of the way,” and then chased Betty June and struck her.

The trial court allowed the permissibility of the “possibility” of rape, despite the lack of evidence. The medical report states that, while there was slight swelling and a slight bruise on the external genitalia of Betty June, the hymens of both girls were intact.

One of the attorneys, Matt Burgess, believes George’s confession was

“changed [by the prosecution] to fit the elements. The murder weapon changed. It was a piece of iron, then a spike and then a railroad spike. That changed in a manner beneficial to law enforcement. In 1944, a 14-year-old black kid interrogated by white officers. . . . They probably put different scenarios to him.  I’m guessing he just said, ‘Yes sir’ a lot.”

Judge Mullen’s Reasoning

In reaching her ultimate decision and why she was willing to take this unusual step to rectify a previous injustice, Judge Mullen explained:

“From time to time . . . we are called to look back to examine our still-recent history and correct injustice where possible. . . . I can think of no greater injustice than a violation of one’s constitutional rights, which has been proven to me in this case by a preponderance of the evidence standard.”

Judge Mullen’s order was based upon the legal remedy of coram nobis, which is rarely used and can be used only when a conviction was based on an error of fact or unfairly obtained in a fundamental way and when all other remedies have been exhausted.

Opinion Conclusion

Excerpt from Judge Mullen’s Opinion

Judge Mullen’s decision has been described as “courageous.”  She is an elected judge in a state that still flies the confederate flag in its statehouse.  Mullen, though, was not concerned:

“I wouldn’t have any regrets (if I was not re-elected). I go home and I feel good about what I’ve done . . . . It was a violation of someone’s constitutional rights. If we let our constitutional rights erode, we will be at the point where we wouldn’t be a democracy anymore, and that scares me.”

Why 70 Years?

George Frierson, a Clarendon County resident, school board member, and local historian has been researching and writing about the case for the last decade. Frierson began investigating the case in 2004 and said the more he researched, the more he became convinced by George’s innocence.  He says there was little blood at the ditch, evidence that the girls were killed elsewhere.  “A 95lb boy can’t carry two dead bodies a quarter mile or more. Those girls were beaten to a pulp.  There would have been a lot of blood.”

Frierson was doing what many in the Alcolu community had not been comfortable doing: that is, talking about the Stinney case.  James Hudley, who for 23 years served as pastor of Alcolu’s Green Hill Missionary Baptist Church, known locally as “the black church,” pointed out that people were reluctant or afraid to speak about the George Stinney case: “If you questioned anybody, they were very tight about the story.”

He added: “I never try to push them because I felt that there was fear that if you talked too much, the wrong people would get the message.” In the wrong hands, the talk could lead to reprisals, threats, intimidation, and violence — a possibility that gains credibility from the case itself, which, says Hudley,  “put a lot of fright into the black population of Alcolu. I feel that even today that fright is still there.”

The case thus brought to light a topic that had been buried beneath anger, fear, guilt, shame, and the power dynamics that contain such a toxic brew.

Despite the long wait, Judge Mullen’s decision last week has managed to restore a portion of what had been taken from the family and the community.

George Frierson had this to say after Mullen’s decision was announced:  “[T]he only thing we have are our names. . . . We have given him his name back because when he was incarcerated, he was given a number. His name at birth was George Stinney Jr., and that’s what he has back now. Not prisoner 260.”

George Frierson leads protest on courthouse steps (2013)

George Frierson leads protest on courthouse steps (2013)

The Origins of the New Case

It was Frierson’s historical writings that brought the community’s attention back to the case and that led lawyer Steve McKenzie, several of his partners, and law professor Miller Sheahy to take up the case.

Judge Mullen’s ruling last Wednesday resulted from a motion that McKenzie filed in January seeking a hearing to vacate the conviction. That effort was part of a six-year project that began after he read George Frierson’s historical accounts.  Among other difficult realizations that McKenzie had to confront when reading that history was that the very courthouse in which the travesty of justice occurred was the courthouse in which he had been practicing as a lawyer.  In other words, the case hit home.

“We have a duty in our profession to do justice,” McKenzie said. “We looked at this and said this is an egregious miscarriage of justice. His (Stinney’s) lawyer never put the state’s case to the test; he never presented any witnesses.”

In response to Judge Mullen’s ruling, McKenzie shared this response:

“When you think about a 14-year-old who is being put on trial for his life and he is the only African American in the courthouse. His parents weren’t allowed, the prosecutor is white, the defense attorney was white, the judge was white, the bailiff is white, everybody on the jury is white, everybody sitting in the gallery is white . . . You think about somebody being alone; he was alone and without help.”


There were those who strongly opposed revisiting and reconsidering the case.

The lawyer opposing the motion, Ernest A. Finney III — a son of the first black State Supreme Court justice since Reconstruction — argued that the outcome should be left alone: “The fact of the matter is, it happened, and it occurred because of a legal system of justice that was in place and that . . . — for all we know, based on the record — worked properly.”

That argument is a familiar one among lawyers because it reflects a strong tendency in the legal system to reach finality and to leave previous decisions undisturbed.

A number of citizens connected to the original verdict also preferred to leave the verdict — indeed, the whole topic — alone.

One Alcolu resident, Russell Harrelson, doesn’t see the point:  “I think it’s kind of a waste of time, myself . . . . What good is it to stir into something that old? I think it’s going to stir up more controversy than it’s going to do good.”

James Gamble’s father was the Clarendon County sheriff at the time of the killings. Gamble rode in his father’s car with Stinney after the teenager was convicted, and in 2003 claimed: “He was real talkative about it. He said, ‘I’m real sorry. I didn’t want to kill them girls.”‘

Jimmy Hodge, now 82, was a boy of 12 when his father joined the search party that discovered the girls.  Hodge still believes Stinney is guilty and doesn’t buy the new information that lawyers have brought to light: “After 70 years, I don’t know where it all came from. Why is it just showing up now?”

Hodge denies the presence of racial tension in the area, calling Alcolu “a village where everybody got along. There was no race problem. They’re a different people and still are,” he said of the black community in Alcolu.

“No other race is like American-born Caucasian, in their heritage and in the way that they do things. And I think that’s why the Lord created more than one race,” he said.  Separate but harmonious:  “The two races separated themselves. They had their own way to do things . . . but it wasn’t that they were against the other.”

Two of Binnicker’s nieces, who emphatically insist that there was no racial element to George’s trial and conviction, also expressed their concerns about airing the old case again. Frankie Bailey-Dyches said “[w]e always knew that our aunt was murdered and we always knew that it was George Stinney Jr.” Unsurprisingly, Dyches believed Stinney had “got what he deserved” and that “justice was served.”

“I believe he confessed,” Dyches said of George Stinney. “He was tried and found guilty by the laws of 1944 … and it needs to be left as is.”

According to Dyches, one of the investigating officers had told her before he died never to doubt George’s guilt.  And she hasn’t.  “It seems like a poor little black boy was railroaded by the white people, but that’s not how it was,” said Dyches. “I’m 100% convinced he did it.”

Dyches attributes the recent interest in the case to the lawyers seeking fees, pointing to a website they set up indicating that they would sue the state for wrongful death if George were exonerated.  (The lawyers respond that the site was to help finance litigation fees only, with any remaining funds going to a scholarship foundation, and that they had no interest in suing for wrongful death and do not know if that is even possible.)

Carolyn Geddings said she felt bad for the Stinney family, but thought a retrial would only open old wounds.

“They can’t help what happened and I don’t know that they were treated fair back then. . . . Once the trial is over, it will be over whatever way it goes and it’s not going to bring him back and it’s not going to bring my aunt and the other little girl back and it’s a sad situation. That’s what happened in 1944 and 70 years is a long time to keep rehashing it, it needs to be over.”

The family had suffered a string of tragedies.  Betty June Binnicker’s parents had previously lost a baby son when he was six months and, after Betty June, lost a third child in the Korean war. As Carolyn Geddings put it, “[f]or Betty June to be killed in such a horrible way – it was a terrible time for all of them.”

Asymmetric Injuries

Clearly, several families were profoundly injured by the events of 1944.

Dyches laments: “My grandparents to begin with never recovered. That was their baby daughter.”

George’s sister, Amie Ruffner, describes her family’s loss this way: “They took my brother away and I never saw my mother laugh again.”  Speaking of the town from which her family was driven:  “I never went back there.  I curse that place.  It was the destruction of my family and the killing of my brother.”

Amie Ruffner

Amie Ruffner

Three children were horrifically killed and several families were ripped apart.

For some in the community, the resultant wounds had festered.  For others, the wounds were avoided or had healed.  For some there was a powerful desire to re-examine the trial, the process,  the evidence, and the outcome.  For others, there was a desire to look away.  For those who identified with George Stinney, there was some hope that his name, memory, legacy, and innocence might be publicly restored.  For individuals who identified with those in power who perpetrated it or were complicit with the execution of George Stinney, there were those things to lose.

The law makes a choice regarding whose injury and pain trumps and whose is eclipsed or whose reputation will be tarnished and whose, unblemished.


For those in the community, too, there are mixed and conflicting motives. In fact, all of us today have at least a small stake in the outcome of this case — and the tensions found at the local level exist at the national level.  Those tensions are evident in the online comments attached to last week’s stories about the case.  They are evident in the parts of the narrative that we accept and those parts that we challenge.  They are evident, too, in the varying reactions to recent events, including the tragedies in Ferguson and Statten Island.  They are evident in our personal, public, local, and national conversations — or lack of conversations — about race, racism, reparations, and even presidential politics.

Some of us perceive profound injustice spreading from the past into the present like a spilled liquid being absorbed by fabric.   Others of us perceive today’s social fabric as untouched by the spills of the past.

But the lessons of Alcolu and George Stinney teach us, not just that our system has been the locus of unmistakable injustices in the past, but that the threads of the past are the threads of the present — that injustice yesterday doesn’t simply die with its victims.  People care about this case and how it is perceived precisely because they feel the tug on who they are and how they live today.

True, the dominant ideologies might have changed across generations, but their effects tend to be fairly constant. Jimmy Hodges’s view that “the Lord created more than one race” and that there is “no other race like American-born Caucasion” is now considered outlandish by most people, but his conclusion that, because there is no explicit, public interracial hostility, then “there [is] no race problem” is still common.  And, yet, the Stinney case itself, and the seven decades before a legal system even acknowledged the injustice of that case reveals that the sources of harmony need not be benign.

Beneath the surface of harmony (and, often, consciousness) are roles, scripts, language, clothing, music, jobs, institutions, architecture, boundaries, traditions, and imagery of hierarchy, much of which is implicitly passed along inter-generationally from within and across identity groups, and most of which support existing hierarchies backed by power and, if need be, violence.

And, together with those cultural habits, the psychological biases, emotions, and proclivities of the past represent deeper human tendencies, not the stuff of a different species.  We are inclined, as they were, to commit injustice while seeing ourselves as just — a tendency that is liberated by power and harnessed by powerlessness.

Pressing Questions

Judge Mullen cautioned that her remarkable ruling should not be seen as opening new legal doors for families grieving over decades-old injustices: “The extraordinary circumstances discussed herein simply do not apply in most cases.”

Fair enough, but why the urge to limit rather than expand this sort of ruling?

This is one case of many in which most people would agree that racial biases and the urge to blame some and immunize others distorts the process and outcomes of the justice system.  Does justice not require that we return to those cases and confront those potential errors.  If, in other words, the purported presumption of innocence was, in fact, a presumption of guilt, why do we not  develop a more robust process for revisiting judicial outcomes that we have reason to believe were incorrect?

Of course, seventy years later is seventy years too late, so, if we know those biases in the past led to unjust decisions, should we not be more attentive to the similarly unjust decisions  and processes today?

If this case teaches us or we otherwise know that one group’s pain, fear, anger, and urge to blame can motivate inflicting pain on a scapegoat, that harming the powerless can be a palliative for the powerful, that our legal system has been an instrument of exercising and maintaining power, that re-examining our history and critically scrutinizing our legal system is upsetting and uncomfortable, that racism there and then finds expression here and now, that our criminal law system (among other legal areas) is racially biased at virtually every level, then why do we accept our current system of justice?

Unfortunately, the Stinney case illustrates problems that are still too common in our system of criminal justice: police and prosecutorial tendencies (conscious or not) to target certain groups and to protect others, differential access to lawyers, children being tried and sentenced as adults, money and wealth influencing judicial outcomes, pressure to give false confessions and to plead guilty, biases in sentencing and in the use of the death penalty, and so on.

Well beyond the judicial remedies, is there not more that should be done to acknowledge and remedy the wrongdoings of the past — particularly when their  harms and underlying causes are still with us today?

George Frierson, who has devoted the last decade to bringing attention to the Stinney case, recently called for an official apology:

“I believe that South Carolina owes the Stinney family and the citizens of South Carolina a public, official apology . . . . South Carolina is still stigmatized. We are the state that put the youngest person to death in the 20th century. That stain will not be washed away until there’s a public apology.”

Frierson added: “Our sitting governor wasn’t born when this atrocity happened 70 years ago. But she’s in the governor’s seat now and she needs to do what the governor of South Carolina in 1944 should’ve done.”

Frierson’s request seems apt — and yet our society has no formal mechanism for addressing the collective wrongs of the past.  Why is that?  Even mere words of apology — which do not cost jobs, weaken our national defense, increase our deficit, encourage illegal immigrants, or threaten the meaning of the family — are rare even when the wrongs were beyond debate.

Consider the history of lynching in this country, a history which formed the backdrop of the Stinney case.

Lynching took the lives of roughly 5000 people between 1882 and 1968, most of them black men. At the turn of the last century, more than 100 lynching incidents were reported each year, many of them publicly orchestrated to humiliate the victims and instill fear in others. Lynching occurred in all but four states in the contiguous United States, and less than 1 percent of the perpetrators were brought to justice.

Still, it wasn’t until 2005, 105 years after the the U.S. Senate first refused to pass an anti-lynching bill, that the Senate issued an apology for its failure to enact federal anti-lynching legislation. That was the first time the body has apologized for the nation’s treatment of African Americans.

In fact, the federal government has yet to apologize for slavery.

Every year for the last 25, U.S. Representative John Conyers has introduced a bill intended to create a commission to explore the possibility of reparations. The bill has gone nowhere.  There would appear to be no interest in even studying or discussing the history of racial injustice in this country.

Why doesn’t justice trump finality, truth triumph over power, and self-examination win out over system-affirmation?  The problem is in part that we have neither the mechanisms nor the stomach for confronting the many profound, collective wrongs that define us.  As flawed as our system of justice is for dealing with current, individualized injustices, our system is even more deficient with respect collective injustices.

Again, perhaps we would have more of an appetite for such institutions if the stained threads of the past were not so visible in the present.  But, alas, they are quite plain.

Judge Mullen’s decision last week in the George Stinney case provides an opportunity to ask questions that we should get in the habit of asking.  If situations like police interrogations can lead innocent suspects to confess to a crime that they didn’t commit, doesn’t that (together with evidence from the mind sciences — see below) suggest that  that situational forces in the criminal law system may be distorting outcomes in many settings?  When we know that processes can be rigged to reach conclusions, why do we give so much legitimacy to those processes?  Under what conditions should we trust the outcomes of a broken criminal law system?

What to do?

Sonya Williamson, an Alcolu resident who was born decades after the events, said that she nonetheless grew up hearing about the  case and that she believes in George’s innocence.  Her grandfather had attended the trial and spoken about how the defendant was taken to court in a cage and could hardly walk under the weight of the shackles. Her grandfather did not believe in George’s guilt and would occasionally say that “[t]hat colored boy didn’t do that.”

Sonya is haunted by that doubt and wonders “[w]hy did he not speak out?”

We are all where George Frierson and Steve McKenzie recently found themselves or where Sonya Williamson’s grandfather once found himself: operating within or being governed by — for better or worse — a  legal system that replicates our best and worst tendencies.

What are we to do about that?

Online Sources:

Other Sources:

  • US lawyers seek retrial for teen executed in 1944, Legal Monitor Worldwide (Jordan) 2014 WLNR 1673889.
  • 1/25/14 N.Z. Herald B005, New Zealand Herald.
  • 3/23/14 The Observer (U.K.) 26, Guardian News & Media Limited.
  • Karen McVeigh, Observer Magazine: George Stinney was executed at 14 (2014).
  • Campbell Robertson, Judge Vacates Conviction in 1944 Execution, 2/18/14 N.Y. Times A28.
  • 12/19/14 L.A. Times 10.
  • Jeffrey Collins, 1/21/14 Postmedia News (Can.)
  • David Zucchino, ‘I never saw my brother alive again,’ THE NATION 2014.

Related Videos:

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For some related posts from the Situationist Blog, see the following:

Laws that Allow Systemic Injustices


HLS students Shakeer Rahman and Sam Barr explain how law’s individualist focus prevents it from tackling systemic injustices:

The Supreme Court overturned this order by one vote. The court explained that Mr. Lyons would have needed to prove that he personally was likely to be choked again in order for his lawsuit to be a vehicle for systemic reform. Without that, he could win compensation only for past injuries.

This is the legal standard when a plaintiff asks a federal court for an injunction — or a forward-looking legal order — in order to stop illegal practices that could harm him in the future. It makes some sense in the abstract: If someone can’t show he will be harmed in the future, why should a court try to prevent the harm? But even though Mr. Lyons couldn’t prove that the L.A.P.D. would choke him again, he could be confident that the police would eventually choke someone else. When the stakes are this deadly, federal courts should step in.

Two Tiers of Criminal Justice

no justice

A great piece by HLS Professor Bruce Hay on the silence of lawyers in the face of our two-tiered criminal justice system:

As another grand jury has let a cop walk away for gratuitously killing an unarmed black man, a loud silence reverberates through the country, just at it has for many years. It is the silence of the nation’s lawyers.

The fact is, we operate two criminal justice systems in the United States. One is for affluent white people, who when accused of crime are treated as citizens, as people with rights. They get the benefit of the constitutional protections we boast about in textbooks and television shows, protections like due process and trial by jury and proof beyond reasonable doubt. And they are often shown great leniency for very serious crimes, including homicide.

The other system is for poor people and racial minorities, who are treated more like trash to be removed from the streets. They are policed as if they enemy combatants; churned through overcrowded, underfunded courts that traffic in guilty pleas and long prison sentences for minor offenses; and harassed or killed by cops whose brutality would never be tolerated against those whose wealth and skin color entitles them to the privileges and protections of the first system.

Another fact is, the vast majority of the American legal profession maintains steadfast silence about this two-tiered regime. There are vocal civil rights organizations, legal aid groups, lawyer-activists and scholars who tirelessly call attention to, and try to combat, what Michelle Alexander terms “the new Jim Crow” permeating American criminal justice. But these voices, articulate as they are, constitute only a small fraction of the nation’s lawyers. The rest of the profession mostly prefers to keep its mouth shut and look the other way.

In this respect, as in others, the new Jim Crow differs little from the old one. A century ago, when swaths of the south were ruled by lynch law, and the rest of the country barely pretended to apply the bill of rights to people other than affluent whites, it was left to civil rights groups and a few conscientious lawyers to press for reform in the courts and other public arenas.

Most of the profession, when not denouncing the reformers for stirring up trouble, sat on the sidelines and pretended not to know what everybody what every sentient person knew — that in the administration of criminal justice, the constitutional promise of “equal protection of the laws” was nothing but a cruel joke.

And fifty years ago, when the Supreme Court finally began to take seriously the idea of equal protection, it did so despite the indifference, if not the active hostility of, much of the legal establishment.

As Earl Warren and his colleagues embraced the radical proposition that the bill of rights actually applied to everyone, including racial minorities and poor people — and that police, prosecutors and courts would have to change their practices accordingly — the predominant reaction among legal elites was concern about judicial activism, about getting involved in messy social and political matters that did not lend themselves to “legal” resolution, were not the proper province of lawyers, were better left to others to fix.

And today? Most lawyers, if we think about the matter at all, know perfectly well that criminal justice in this country is in disgraceful condition, that it makes indefensible distinctions between white and black, rich and poor, first class and second class. It’s just that we prefer not to talk about it. We leave that to the civil rights groups and the the criminal law specialists and the street protesters. Maybe we privately hope they succeed in changing things. But it’s really not our problem. There’s no money in it, and our well-heeled clients wouldn’t be too happy if we criticized the system that treats them so well.

We should consider the possibility, though, that our silence is self-incriminating. Lawyers, after all, are the guardians of the legal process, and we profess allegiance to the ideal of equal justice under law.

As we play the part of helpless bystander to America’s two-track system, we do more than expose our fellow citizens to discrimination and mistreatment and gasps of “I can’t breathe.” We expose ourselves to charges of fraud.

Deans Minow and Post on Need for Systemic Change


From Today’s Boston Globe:

IN THE wake of the recent grand jury decisions in Ferguson and Staten Island, outrage and despair are reverberating across the nation, including at the law schools where we teach. Many of our students are struggling to reconcile their ideals of justice with what they perceive as manifest injustices in the criminal law system.

Law establishes its legitimacy through procedures that are open and fair. Legal procedures create accountability for those who wield power. We ought to determine the law’s legitimacy at least in part from the perspective of those who suffer its coercion. When the law’s blows fall persistently on the lives and bodies of identifiable groups, and when the procedures we have designed to create legal accountability are short-circuited or fail, our aspiration for a legitimate social order is put at risk.

If African-American communities come to perceive police as alien and violent oppressors, there can be no hope of establishing a common and viable rule of law. Repeated and pervasive patterns of publicly unjustified and lethal violence against unarmed individuals kill that hope and thus victimize us all.

Police violence may be necessary, but unjustified violence can never be. The justification for violence must be established through full, fair, and open legal procedures. If these procedures are sidestepped or avoided, the legitimacy of the legal system is endangered.

It has become undeniable that existing procedures have fallen short. We need real and specific remedies. These could include mandated responses by police commissioners to recommendations by citizen review boards; establishment of sufficiently resourced state-level agencies empowered to prosecute; and regular and persistent review processes by the Department of Justice for the failure of local and state law enforcement agencies to prevent unjustified, racially based police violence.

As communities struggle to regain trust in particular police departments, there may also be lessons to learn from the use of truth and reconciliation commissions abroad. Such efforts can yield honest disclosures, apologies, and reparations rather than adversarial denials. Even more important, we need to provide the training necessary to prevent unjustified police violence. US Marines are taught, “Never point a weapon at anything you do not intend to shoot.” Our police should have an equally serious understanding of the gravity that must accompany the use of lethal force.

There is no lack of good ideas for structural changes that might improve police conduct and hold police properly accountable. But to implement reforms, people must register, vote, and stay alert that our elected officials remain answerable for the behavior of our police.

As deans of law schools devoted to the rule of law, we work continuously to instill a commitment to the legal system. We regard the rule of law as a precious and fragile resource. But the rule of law requires the legal system to respect procedures necessary to expose and correct its own mistakes. A failing legal system puts us all in a chokehold.

As we mourn the deaths of Eric Garner and Michael Brown, let us remember that the real grand jury is all of us. We must constantly ask how we can narrow the gaping distance between our legal ideals and the practices we countenance. We must struggle as a society to come to grips with the tragedies that have overtaken us.

Vulgar inequality


Paul Krugman believes that liberals are situationists, while conservatives are dispositionists:

Liberals talk about circumstances; conservatives talk about character.

As a case in point, he suggests that the only way to stop the extremely wealthy from engaging in conspicuous consumption is to stop them from being extremely wealthy:

As Thorstein Veblen told us long ago, in a highly unequal society the wealthy feel obliged to engage in “conspicuous consumption,” spending in highly visible ways to demonstrate their wealth. And modern social science confirms his insight. For example, researchers at the Federal Reserve have shown that people living in highly unequal neighborhoods are more likely to buy luxury cars than those living in more homogeneous settings. Pretty clearly, high inequality brings a perceived need to spend money in ways that signal status.

The point is that while chiding the rich for their vulgarity may not be as offensive as lecturing the poor on their moral failings, it’s just as futile. Human nature being what it is, it’s silly to expect humility from a highly privileged elite. So if you think our society needs more humility, you should support policies that would reduce the elite’s privileges.



Shane Bauer writes about an Atlantic article on life in prisons that neglects to interview a single prisoner. Perhaps it is the way we dehumanize prisoners as a group that allows journalists to avoid seeing how unacceptable it is to neglect their side of the story. Our willingness to countenance outrageous “jokes” about events that happen in prison is another manifestation of this dehumanization, which lets us avoid activating our sense of injustice. As Bauer writes,

When you have two sets of people, like inmates and prison administrators, who each have interests in misrepresenting each other, you make every effort to verify their claims about each other. Those are the ground rules of journalism.

One last thing. Jokes about things in prisoners’ asses are not funny. In a presentation for Wood, a gang investigator likens gang leaders to 1980s Chrysler chairman Lee Iacocca. As an aside to us readers, Wood quips, “I have found it impossible to look at a picture of Iacocca without imagining him stuffing his cheeks and rectum with razor blades.” It sickens me that I am meant to laugh at this.

Demanding Justice at HLS


The Coalition at Harvard Law School sent a series of letters to the Harvard Law School faculty and administration.

Their first letter included the following introductory paragraphs:

This campus ­­ and the nation ­­ erupted in outrage when grand juries failed to indict Officers Darren Wilson and Daniel Pantaleo for the killings of Michael Brown and Eric Garner, respectively. These recent events highlight that intolerance in America continues to cost us countless lives at the hands of law enforcement. We have no faith in our justice system, which systematically oppresses black and brown people. We are afraid for our lives and for the lives of our families. We are in pain. And we are tired.

We have been visibly distressed and actively engaged throughout this public national crisis. The administration has remained silent.

We led rallies, held vigils, and published an op­ed. You were silent on this issue. We petitioned the government, served as legal observers, created spaces of solidarity, drafted model legislation, and marched through the streets of Boston and Cambridge. You remained silent on this issue. We spent countless hours leveraging our legal educations, and utilizing our platform and privilege as students of this institution. And all we have heard from the administration is deafening silence.

Their second letter, in reply to a response from Dean Cosgrove, included this introduction:

Thank you for your replies to our letter. We appreciate your quick responses. We are pleased that you have now decided to join this ongoing conversation, and have committed to taking additional steps regarding our requests for student support and discussion about these issues on campus. However, your responses did not adequately convey your intention to timely meet all the needs of our communities.

We have included below this email our assessment of how your emails addressed our stated needs (Appendix A). We are particularly concerned with the lack of direct response to two of our requests:

(1) Our request for the HLS Administration to properly address the entire student body in a manner that recognizes students’ trauma as legitimate; andHLS Student Die-In

(2) Our request for exam extensions for students who are traumatized by this tragedy and who have felt duty­bound to dedicate their time mobilizing for justice.

This afternoon, students held a die-in outside a faculty meeting (see image to the right).

This evening Dean Martha Minow sent the following message to the law school community announcing a discussion event this Wednesday:

I want to start by thanking and commending the students who have, in the great tradition of the Harvard Law School, sought to cast a light on what we can learn from the events in Ferguson, Staten Island, and Cleveland and how we can take this opportunity to raise awareness about questions of racial justice and about reforms that will make our system more just.

I have been profoundly moved and distressed by these tragic events as I know many students, staff and faculty have been too.  I have talked with many of you about what these events mean to the families and communities most affected by them, as well as our nation.  I have also had many thoughtful conversations about the systemic implications of these events and how we might use Ferguson, Staten Island, and Cleveland to catalyze our efforts to make our criminal justice system better and more fair.

To that end, I hope you will join me and some members of the faculty this Wednesday, December 10, at noon in the Ames Courtroom to discuss what has happened and to begin to think together about how we might move forward and contribute to the effort.  I know that it is a busy time of the year, and I apologize for the short notice. But I am convinced that this conversation and the work that flows from it should not wait until we return in January.

As lawyers and members of the HLS community, we have a special obligation to work toward social and procedural justice and to advance the deeply rooted ideals that bind us together and will give us strength in the work that lies ahead.

Review all the letters in their entirety, including various appendices, here.