Emancipate NC attorney Ian Mance, along with Elizabeth Hambourger, an attorney from the Center for Death Penalty Litigation, published an article in Trial Briefs about attorneys’ duty to challenge the racist symbols, including Confederate monuments, in our counties’ courthouses. – even in the face of discomfort or adversity.
The article states:
Attorneys who practice in courthouses with Confederate monuments or other symbols of white supremacy should educate themselves on the history of the monument in their community by consulting resources like those compiled by the N.C. Campaign to Remove Confederate Monuments, a project of the N.C. Commission on Racial and Ethnic Disparities in the Criminal Justice System (NC-CRED). In many places around the state, much can also be learned from local groups and organizers mobilizing for the monuments’ removal. Attorneys should seek affidavits from local residents about the harms caused by the monument, highlighting the effect of the monument on people of all races.
Attorneys might argue that the presence of the monument, in a place of honor near the courthouse, where it will be viewed by witnesses and jurors every day, introduces the risk that impermissible factors such as implicit bias, conscious prejudice, and sympathy for white supremacy will harm our clients’ rights. We should describe monuments to the Confederacy as an affront to the dignity and decorum of the judicial proceedings. In criminal cases, we should cite our clients’ rights to due process, equal protection and a fair jury, and, in a capital case, the Eighth Amendment. In both civil and criminal cases, attorneys might consider filing motions asking the court to cover the monument or to change venue to a courthouse that does not have one. We might also use a monument’s presence to support a motion to instruct the jury about implicit bias or to defend our ability to ask questions about race in jury selection or reference race in closing argument.
Not all judges will be receptive. In a pair of recent concurring opinions, two members of the N.C. Court of Appeals rebuked a criminal defense attorney for alluding to systemic racial inequities in the course of her argument on an individual case. The judges characterized such advocacy as “not helpful to maintaining public confidence in the judiciary or the practice of law generally.” The case, State v. Johnson, is a reminder that not all courts will welcome arguments and motions that address issues of race. Yet the judges’ focus on the maintenance of public confidence in the judiciary seems apt here. It is difficult to imagine anything an attorney could say about a physical tribute to slavery and its proponents that could undermine public confidence in the law more than the presence of such a monument itself.
It can take courage for us to raise issues of race in the courtroom, and it may often feel uncomfortable. Yet as the growing diversity of the North Carolina bar attests, today’s legal community has benefited from the work of earlier generations of lawyers, who often faced significant opposition when confronting racial injustice. As caretakers of the state’s legal institutions, attorneys today bear a special responsibility — to our clients, to the public and to future members of our profession — to make all of our court spaces worthy of the word “justice.”