I attended a fantastic colloquium talk yesterday at which Cynthia Lee (GW) presented on her forthcoming article about the Trayvon Martin case. (The TJSL colloquium committee, including my colleagues Alex Kreit and Meera Deo, have done a fantastic job of bringing speakers to campus.) Professor Lee drew on her own prior work as well as groundbreaking new research, and used the Martin case as a lens:
This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving claims of self-defense. Recent research on race salience by Samuel Sommers and Phoebe Ellsworth suggests that individuals are more likely to overcome their implicit biases if race is made salient than if race is simply a background factor, known but not highlighted. Sommers and Ellsworth demonstrate through empirical research that making race salient, or calling attention to the relevance of race in a given situation, encourages individuals to suppress what would otherwise be automatic stereotypic congruent responses in favor of acting in a more egalitarian manner. Building on these insights, Professor Lee suggests that in the run of the mill case, when an individual claims he shot a young Black male in self-defense, the police, the prosecutor, the judge, and the jury are likely to find reasonable the individual’s claim that he felt he was being threatened by the young Black male unless mechanisms are in place to make the operation of racial stereotypes in the creation of fear salient. In the Trayvon Martin case, race was made salient by the huge public outcry over the Sanford Police Department’s failure to arrest Zimmerman and extensive media coverage. Most criminal cases, however, do not receive the kind of media attention received by the Trayvon Martin case. In most interracial criminal cases, race is a background factor but generally is not something either party tries to highlight. Professor Lee concludes with some suggestions as to how prosecutors and defense attorneys concerned about the operation of implicit racial bias can make race salient in the criminal courtroom.
Professor Lee’s previous scholarship has explored in some detail the ways in which racial biases can infect verdicts, especially in areas like self-defense where subjective intent can be important. Her article Race and Self-Defense is foundational, and I assign it every year in my Critical Race Theory class (along with other important work in this area, like Paul Butler‘s writings on jury nullification and on mass incarceration). It was a delight to hear Professor Lee present about her new work, and I’ll absolutely be using this as I teach in the fall. And Professor’s Lee’s talk illustrated one silver lining to the Trayvon Martin case: The intense media scrutiny focused public attention on possible racial biases, and this created a public awareness which may ultimately lead to a more just criminal justice system.