Case hijacked to fight Confederate flag placement

Joining the sesquicentennial of the beginning of combat in the Civil War was a suit that could result in the removal of the (Third) Confederate (Battle) flag from its perch near the Caddo Parish Courthouse. Even a recent Louisiana Supreme Court ruling concerning its presence will not resolve the debate over that for some.

The flag complements a commemorative marker placed in 1903 lauding the land on which the courthouse sits as the last location of the capital of the Confederacy. It got planted there in 1951 after all of the small plot, near a corner of the property, was transferred by the parish to the local United Daughters of the Confederacy chapter. Thus, as past protesters of it have discovered, they cannot use political pressure on parish government to have it removed as it flies on private property.

This latest effort comes related to an appeal of a capital case.
A black man convicted of murdering a white firefighter, prior to his trial at the courthouse had a black potential juror challenged by the prosecution because he expressed discontent about the flag’s presence. Further, jurors are alleged to have spotted the flag on numerous occasions during the trial. These culminate in the contention that he did not get a fair trial. Backed by local groups such as the Shreveport chapter of the National Association for the Advancement of Colored People and other outside organizations such as the American Civil Liberties Union drawing upon civil rights activists and litigators from the state and beyond, these interests now desire to use judicial fiat to achieve their policy objective of getting rid of the flag.

The brief filed by the ACLU for the case heard by the Louisiana Supreme Court attempts to support the contention to overturn the capital sentence because of a prejudiced jury. It argues consistent exposure to the flag in the courthouse environs, particularly regarding the 11 of 12 white jurors, made them more hostile to the defendant. Secondarily, it claims that the land never officially was transferred to the UDC from the parish, perhaps setting the stage for some future legal challenge to have that land declared still parish land

Basically, the case rests upon the idea that presence of the flag primed racist behavior out of jurors, and perhaps even the prosecutor who was white. The brief attempts to provide evidence both historical and even social scientific that meaning infused with the flag would elicit this kind of attitudes prejudicial to the convicted client.

But what makes this entire effort a Hail Mary exercise is McCleskey v. Kemp (1986). Even if there was consensus social science on racial attitudes having an impact on jurors’ decisions separate from any reasoned analysis of the evidence, which there is not given conflicting results and validity questions, the U.S. Supreme Court ruled here that aggregate statistical evidence cannot serve as proof of intent of specific jurors. In other words, the defendant is required to prove that some specific actor or actors in his individual case intentionally discriminated against the defendant on the ground of race in making a decision that resulted in the death sentence. A claim of some general atmosphere imputed by some observers as racist just won’t cut it.

Additionally harming this specific case on these grounds is that the presiding judge of that trial, First District Court’s John Mosely, is black. Especially on the matter of juror selection, Mosely had plenty of jurisprudence available to back efforts to prevent a discriminatory jury from being seated had he sensed obvious prejudice. It also ignores the fact that it is entirely possible to enter the courthouse without having to view the monument and flag.

Of course, lawyers for clients on death row will grasp at any straw to prevent the sentence from being carried out. In this instance, it permitted a vehicle for special interests to latch onto in order to promote their cause so the impact is far more likely to be political than judicial, in the battle to remove a symbol they find obnoxious perhaps by finding some way, to declare it still waves on public land (as the brief argues), then to inaugurate a public pressure campaign to remove it.

Not that the defenders of the flag make it a difficult proposition to rally support. As has been explained in this space, advocates of flying the flag exhibit a curious myopia in claiming that their selective definition of the its symbolism is the only correct one as they illegitimately try to excise the well-earned and deserved negative connotations of it. If they genuinely wanted to celebrate valorous traits they assert, the existing American flag represents those far more effectively without the ugly baggage.

Still, as divisive as it may be (and an argument the Louisiana Supreme Court declined to address), there’s no evidence its presence compels racist behavior and its being situated on private property, no matter its proximity to the courthouse, should allow its free expression of both laudatory and troubled values.