Tuesday, November 22, 2016

No, Mr. Prosecutor, you may not call the large black defendant "King Kong"

Looking for some frank talk about race and criminal justice?

United States District Court Judge Gergel of South Carolina and the Fourth Circuit call it as they see it: Referring to a large black defendant during a capital sentencing proceeding as "King Kong," a "caveman," a "monster," and a "beast" violates due process, especially when combined with the elicitation of evidence that the defendant once had an affair with a "blonde-headed lady" (read: white), and that he had assaulted a white man who, while in a coma, dreamt he was being chased by murderous black Indians.

Judge Gergel (who embedded the above image in his order granting federal habeas relief): "Like the injection of the 'black Indians' dream and the Petitioner's white lover, the King Kong reference is a not so subtle dog whistle on race that this Court cannot and will not ignore."

The Fourth Circuit (affirming Judge Gergel's order):

The prosecutor's comments were poorly disguised appeals to racial prejudice. It is impossible to divorce the prosecutor's "King Kong" remark, "caveman" label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor's comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution. We are mindful that courts "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning." Donnelly, 416 U.S. at 647. But here, "the prosecutor's remarks were quite focused, unambiguous, and strong." Caldwell v. Mississippi, 472 U.S. 320, 340 (1985). The comments plugged into potent symbols of racial prejudice, encouraging the jury to fear Bennett or regard him as less human on account of his race.

The "King Kong" comment especially drew on longtime staples of racial denigration. That comment was "not just humiliating, but degrading and humiliating in the extreme." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc) (internal quotation marks omitted). Likening Bennett to King Kong in particular stoked race-based fears by conjuring the image of a gargantuan, black ape who goes on a killing spree and proceeds to swing the frail, white, blonde Fay Wray at the top of the Empire State Building. Petitioner is right to note that the film is regarded by many critics as "a racist cautionary tale about interracial romance." Br. of Appellee at 40 (quoting Phillip Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292, 293 (2008)).


The record here tells the story. There is no need for elaboration on our part. The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it. The many instances where the system performs its duties admirably help to build the trust of the people. A proceeding like this one threatens to tear that trust apart.

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