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Prosecuting Violence/Reconstructing Community Anthony V University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2000 Prosecuting Violence/Reconstructing Community Anthony V. Alfieri University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Criminal Procedure Commons, Law and Race Commons, and the Law and Society Commons Recommended Citation Anthony V. Alfieri, Prosecuting Violence/Reconstructing Community, 52 Stan. L. Rev. 809 (2000). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. Prosecuting Violence/Reconstructing Community Anthony V. Alfieri* For two centuries, the private violence of American history has paraded into courtsfor public trial. Often dramatizedby the spectacle of rape and mur- der, the public trials of private violence increasingly are seen to decide the fates of both the accused and the victim of crime. The fate of community, whether the community of the victim, the accused, or the public, seems atfirst blush untouched by such trials. Like victims and theirfamilies, however, com- munities struck by violence suffer profound loss. That loss is expressed in the destruction ofpublic discourse, reason, and citizenship. This public ruin is not simply the result of interpretive and material violence; rather it is a conse- quence as well of the force of law and legal agents. The forum of law's vio- lence is the criminaljustice system. The agents of its advocacy areprosecutors and criminal defense lawyers. Their acts and ethics work to shape the prose- cution of violence. When that prosecution confronts race, law and community each faces trial and, inevitably, the despoiling of public interracialdialogue. Indeed, the prosecution of racialviolence typically silences the reasonedpublic deliberationand exchange necessary to construct interracialcommunity. The norms and narrativesof community and criminal justice heard at the trials of private racial violence by no means ordain this result. Reflecting the institu- tional and regulatory complexity of multiple prosecutorialroles and burdens, those norms and narrativesgrant both freedom and constraint in the prosecu- tion of raciallymotivated violence. Guided by the lessons of law reform move- ments and the teachings of grassroots community organizations,the challenge for prosecutors in race cases is to overcome the burden of silencing tradition and to explore the discretionaryfreedom of reconstructinginterracial commu- nity. * Professor of Law and Director, Center for Ethics and Public Service, University of Miami School of Law. Earlier versions of this article were presented in workshops at DePaul University College of Law, SMU School of Law, the Working Group on Law, Culture, and Humanities, and Stanford Law School. I am grateful for the comments of the participants in those workshops, and for the support of colleagues and friends: David Abraham, Adrian Barker, Robert Chang, Jerome Culp, Wes Daniels, Richard Delgado, Jane Dolkart, John Ely, Michael Fischl, Clark Freshman, Ellen Grant, Patrick Gudridge, Angela Harris, Amelia Hope, Darren Hutchinson, Lisa Iglesias, Sharon Keller, Don Jones, Alex Lichtenstein, Jonathon Simon, Susan Stefan, Jean Stefancic, and Frank Valdes. I also wish to thank Heather Cohen, Clare Membiela, Shana Stephens, Kira Willig, and the University of Miami School of Law library staff for their research assistance, and as well the edito- rial board members of the Stanford Law Review for their able assistance. This essay is dedicated to Evelyn Nay Grant, great grandmother to many. STANFORD LA WREVIEW[ [Vol. 52:809 INTRODUCTION ........................................................................................................811 I. LAW AND COMMUNITY ....................................................................................... 815 A. Community Norms and Narratives........................................................... 816 B. The CentralPark Jogger and James Byrd Trials..................................... 818 C. CriminalJustice Norms and Narratives................................................... 822 1. How liberaltheory shapesprosecutorial visions of law ................... 823 2. How race upsets the liberal model.................................................... 823 3. Discretionarynorms ofpunishment.................................................. 824 4. Application ofprosecutorialnorms and narrativesto the Central ParkJogger and James Byrd trials...................................... 826 5. Prosecutorialtensions: The problems of competing goals ............... 827 6. How to achieve the constitutionalvalues of racialtolerance and equality....................................................................................... 829 7. Moral-formal dilemmas in the CentralPark Jogger and James Byrd trials ......................................................................................... 830 I. PROSECUTORIAL ROLE, FUNCTION, AD REGULATION ..................................... 831 A. Ethics Rules and Standards...................................................................... 831 1. Prosecutorialobligations under the ethics rules and standards....... 833 2. The currentethical standards........................................................... 837 3. How federal criminal interventionhinders prosecutorsin fulfilling their ethical duties .............................................................. 838 B. ProsecutorialRoles and Burdens: Freedom and Constraint................... 840 1. Constitutionalrole ............................................................................ 840 2. Institutionalrole ................................................................................ 842 3. Professionalrole ............................................................................... 843 4. Culturalrole ...................................................................................... 845 5. Community role ................................................................................. 847 6. Moral role ......................................................................................... 848 III. (RE)CONSTRUCTING INTERRACIAL COMMUNITY ............................................. 849 A. Culturaland Societal Impact ................................................................... 850 1. Material and interpretiveforms of violence ...................................... 850 2. Spatialgeography of violence ........................................................... 852 3. The connection between sexual violence and race............................ 853 B. Lawyers and Community: Lessons in Grassroots Community Power.................................................................................... 855 1. The civil rights movement ................................................................. 856 2. Welfare rights movement .................................................................... 857 3. Women's rights movement ................................................................ 858 4. The gay/lesbian rights movement ...................................................... 859 C. PostmodernProsecutorial Norms and Narratives................................... 860 1. Postmodernismand race................................................................... 861 2. Postmodernismand gender ............................................................... 861 3. Racial identity in law andpolitics ..................................................... 862 4. Liberallegalism, tolerence, and post-modern censorship of racistspeech .................................................................................. 863 5. The merits of collective action .......................................................... 866 CONCLUSION ........................................................................................................... 868 Apr. 2000] RECONSTRUCTING COMMUNITY INTRODUCTION This essay explores the subject of law, violence, and community in con- temporary America. Part of a larger project investigating the role of race, lawyers, and ethics in the American criminal justice system, the essay draws on both jurisprudential and interdisciplinary materials to probe the socio- legal text and the historical context of racially motivated violence in two re- cent high-profile criminal trials: the 1990-91 Central Park Jogger sexual as- sault trials in New York City, and the 1998-99 James Byrd murder trials in Jas- per, Texas.2 Exploding at the intersection of law, culture, and society, the socio-legal text of racial violence finds important, albeit partial, expression in the discourse of criminal justice advocacy. Inscribed in the speech, writ- ing, and symbolic gesture of prosecutors and defense attorneys, that text sig- nifies the juridical translation of violence into word.3 For these pivotal legal actors, translation occurs in the language of law and in the adversarial con- duct of lawyering. The commonplace translation of speech and conduct in the criminal courtroom carries moral significance for both the quotidian plea bargain and the banner murder trial. Significance flows from the private and public con- struction of identity in the
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