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Criminal Justice Magazine
Fall 2003
Volume 18 Number 3

Book Review

Andrew E. Taslitz

Andrew E. Taslitz is a professor of law at Howard University Law School in Washington, D.C. He is also chair of the Criminal Justice magazine editorial board and an at-large member of the Section Council.

Running on Empathy

Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom by Cynthia Lee (New York University Press 2003); 371 pp. hardcover; $37.95.

Reviewed by Andrew E. Taslitz

A common complaint about legal academics is that their work has little connection to the real world. Some judges, most famously Harry Edwards, have waged public relations campaigns to shame law professors into writing pieces of immediate practical value to the practicing bar. Cynthia Lee, as evidenced by her new book, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, is one academic, however, who can hold her head high.

Lee is a former criminal investigator, then criminal defense lawyer, who has most recently become among the most well respected of the young academics in the field of criminal law. Her book marries theory and practice nicely and is written with the clarity, energy, and verve of the best trial lawyers. Indeed, one of the great strengths of her book is its vivid storytelling about the lives and fortunes of everyday folk caught up in the criminal justice system.

Lee’s subject matter

Lee’s subject is the role of the "reasonable man" (or, more modernly, "reasonable person") in the law of homicide. More specifically, Lee addresses when the reasonable man is provoked into killing, thus mitigating murder to manslaughter, and when he is instead entitled to use deadly force, thus meriting complete acquittal on grounds of self-defense. The "reasonable man" idea means different things in both situations, the first (provocation) justifying the jury’s exercising compassion for someone understandably (but still wrongly) provoked to kill, the second (self-defense) justifying complete acquittal as a social good preferable to passive victimization by an assailant. Both uses of the reasonable man idea share certain features nevertheless.

First, argues Lee, the phrase, "the reasonable man," is rarely defined for jurors with any clarity. Jurors thus generally interpret the phrase to mean the "average or typical man." Judges also generally seem to share this definition. Therein lies the rub, for jurors will draw on their own biases, including widely shared, but often unexamined, social norms in deciding what feelings and beliefs are "typical." They may sometimes do so subconsciously, and they are most likely to draw on stereotypical thinking when controversial social issues are involved.

Lee chooses three primary examples to make her point: women or gays killing their cheating lovers; purportedly heterosexual men killing in "gay panic" when propositioned by other men; and whites using deadly force against blacks, Latinos, and Asians because of a belief that such groups’ members are especially dangerous. In each situation, the killer experiences a corresponding set of human emotions: betrayal and jealous rage for sexual infidelity, outrage and revulsion for gay panic, fear for racialized self-defense. Social "norms" seem to many jurors to justify each of these emotion sets. Thus, while "real men" are expected to react violently upon learning that their wives have cuckolded them, "good women" are expected to cry, yell, whine, flee, or seek divorce from cheating spouses, but not to hurt or kill them. Similarly, heterosexuals are expected to be repelled by observing gay sex or being propositioned by a gay man. Indeed, the absence of outrage might mark one as a "sissy." Additionally, though many white jurors may consciously reject racial stereotyping, subconsciously many may still embrace the vision of black men as brutes, young Latinos as gang members, and young Asians as martial-arts thugs. Lee shows these norms at work in a wide array of circumstances, from police use of excessive force to immigrants’ assertion of the "cultural defense," to everyday killings in bars or on street corners. The great dangers of these norms’ influence, Lee suggests, are that they reinforce social prejudices that oppress politically weak groups and lead juries to decide based more on stereotypes than on an individualized, open-minded consideration of the evidence against this offender in the case before the jury. One possible solution, therefore, might be legislation barring jurors from even considering provocation or self-defense in these sorts of cases. This categorical solution is one, however, that Lee rejects.

Sources of norm abuse

For Lee, there are two real sources of jury abuse of social norms. The first source is a failure of empathy. Jurors often lack life experience that includes significant contact with aggressive women, gay men, or racial and ethnic minorities. Wherever there is a gap in life experience, jurors will draw on stereotypes that block real understanding and individualized justice. If a juror himself would be appalled at being propositioned by a gay male, the juror will see the defendant’s similar outrage as being perfectly reasonable.

The second cause of norm abuse is the vague, confusing, or simply unfair use of jury instructions that let "typicality" stand in for reasonableness. "Reasonableness" is, or at least should be, a normative concept, a standard of "ought" rather than "is," Lee argues. In anger, any one of us might genuinely, if briefly, want to kill someone who has insulted us, but we do not do so. The reaction of outrage at insult is understandable, in that it is "typical," something to which we can all relate. But that does not make someone who then acts on this understandable impulse necessarily right in doing so, nor does the killer thereby always merit some degree of compassion. There is, therefore, a distinction between the reasonableness of having a feeling ("emotion reasonableness") and of committing the ensuing act ("act reasonableness"). An emotion’s reasonableness turns on its typicality, but an action’s reasonableness turns on its normative merit as judged by sound standards of right and wrong.

Faith in the jury

Combined with this two-pronged diagnosis of the causes of the problem, Lee brings an abiding faith in the wisdom of the criminal jury. Despite Lee’s concerns about the potential abuse of social norms, she believes that, once properly educated, the jury must be free to choose to apply dominant norms, if they deem it appropriate, in a particular case. Given the overwhelming resources and growing power of the state relative to often underfunded defense counsel who are constrained by a law and order judiciary, defendants must have the ability to argue for individualized consideration of their circumstances as a counterbalance to state power and assembly-line justice.

Most importantly, perhaps, argues Lee, properly instructed juries will end up deliberating about values and social norms. Values necessarily affect fact-finders’ judgments precisely because the questions of reasonableness posed by the law are themselves ultimately normative, value-based inquiries. A key justification for the jury system is that it permits deliberative evaluation of social norms by laypersons, introducing an element of populist democracy into lawmaking as a way of checking and balancing the dominance of elite judges and prosecutors. Deliberation over similar sets of values by numerous juries around the country can, over time, contribute to the nationwide evolution of those values. Juries thus simultaneously limit overweening government and promote basic democratic values and contextualized decision making.

Properly instructed juries can similarly learn to develop empathy that they might initially lack. The goal, says Lee, is to increase the quality and quantity of information jurors receive while prodding them toward new ways of thinking. Lee’s model draws on philosopher Adam Smith’s "judicious spectator"—the model moral judge who is unbiased and somewhat detached, while drawing on his analogous personal history to "endeavor, as much as he can, to put himself in the situation of the other and to bring home to himself every little circumstance of distress which can possibly occur to the sufferer." (Adam Smith, The Theory of the Moral Sentiments 22 (1774).) The problem is that jurors may often feel too much empathy for defendants but too little for the gay, female, immigrant, ethnic, or racial minority victim. Likewise, deliberating about values and learning empathy for others promotes a frame of mind that can reduce both jury divisiveness and gender/racial/sexual orientation divisiveness in the wider world. Leaving reasonableness determinations to the fact-finder rather than to the legislature (which might simply declare that, for example, "gay panic" can never be a defense) thus promotes social cohesion while leaving defendants free to make arguments and offer evidence defending dominant norms’ application to specific cases.

Switching on empathy

A major part of any solution to the reasonable man problem, argues Lee, is to craft model jury instructions. These instructions would heighten empathy by promoting racial, gender, or sexual-orientation "switching." The instructions would also discourage jurors from equating reasonableness with typicality by explaining the act-emotion reasonableness distinction. Lee does not merely suggest that such instructions be crafted. She provides two model instructions in their entirety.

"Switching" is a concept inspired by novels like A Time to Kill, a John Grisham story in which an African-American father in Clanton, Mississippi, fatally shoots the two white men who brutally beat and raped his 10-year-old daughter. At the end of the father’s capital murder trial, the jury is seemingly deadlocked, until one juror, Wanda Womack,

made them all close their eyes and listen to her. She told them to pretend that the little girl had blond hair and blue eyes, that the two rapists were black, that they tied her right foot to a tree and her left foot to a fence post, that they raped her repeatedly and cussed her because she was white. She told them to picture the little girl layin’ there beggin’ for her daddy while they kicked her in the mouth and knocked out her teeth, broke both jaws, broke her nose. She said to imagine two drunken blacks pouring beer on her and pissing in her face and laughing like idiots. And then she told them to be honest with themselves and to write on a piece of paper whether or not they would kill those black bastards if they got the chance. And they voted, by secret ballot. All twelve said they would do the killing. The foreman counted the votes. Twelve to zero.

(John Grisham, A Time to Kill 513 (Dell, NY, 1989).)

Shortly thereafter, the jury unanimously voted to acquit the father whose life lay in their hands.

"Race-switching" instructions prod real-life jurors to engage in the same sort of imaginative, empathy-building exercise engaged in by the A Time to Kill jurors. Lee first suggested race-switching instructions in a 1996 law review article. In her book, Lee tells the story of a real case in which her race-switching notion, as she first articulated it in 1996, seemingly affected the defense lawyers’ strategy, the judge’s instructions, and the case verdict. Jim McComas and Cynthia Strout were two attorneys defending an African-American teen charged with first-degree assault as an adult for whacking a white student’s head with a hammer during a construction electricity class in an Alaskan high school. The white student started the fight, but, because the student was unarmed, the prosecutor argued that the black teen overreacted. The two lawyers’ major concern was that the "prosecution claim of excessive force would be more easily bought since our client was a black teen—presumably prone to pointless violence—and the ‘victim’ was white—presumably non-aggressive." (Lee, supra, at 256) (quoting Letter dated October 20, 1997, from James H. McComas, Attorney at Law, to Professor Cynthia Lee).) Accordingly, the lawyers adopted a five-part strategy to achieve racial empathy, starting with presenting their case to a mock jury and drafting a carefully tailored written jury questionnaire. Next, they raised the race issue during voir dire. Thus, attorney Strout told prospective jurors about a recent incident in which she saw a young black male driv-ing a BMW and assumed that he was a drug dealer. That assumption proved to be wrong, however, for the youth was instead a dependable and apparently drug-free doctor’s son. The lawyer’s goal was to give jurors permission to confront and talk about their own stereotyped thinking. The attorneys also used voir dire to explain to the prospective jurors the difference between wrongly using race as an excuse (the "race card") and properly using it to explain "the complainant’s motive to initiate aggression, as evidenced by his use of racial slurs, and the influences which might affect witness perception of the events." Furthermore, the lawyers offered a research psychologist’s testimony concerning the processes by which racial stereotyping can affect memory and perception. Finally, the lawyers proposed, and the court gave, an instruction on race-switching based substantially on Lee’s proposed model:

Instruction No. 6

It is natural for human beings to make assumptions about the parties and witnesses in any case based on stereotypes. "Stereotypes" constitute well-learned sets of associations or expectations connecting particular behaviors or traits with members of a particular social group. Often, we may rely on stereotypes without even being aware that we are doing so. As a juror, you must not make assumptions about the parties and witnesses based on their membership in a particular racial group. You must not assume that a particular interpretation of a person’s behavior is more or less likely because the individual belongs to any particular racial group. Reliance on stereotypes in deciding real cases is prohibited both because every accused is entitled to equal protection of the law, and because racial stereotypes are historically, and notoriously, inaccurate when applied to any particular member of a race.

To ensure that you have not made any unfair assessments based on racial stereotypes, you should apply a race-switching exercise to test whether stereotypes have affected your evaluation of the case. "Race-switching" involves imagining the same events, the same circumstances, the same people, but switching the races of the parties and witnesses. For example, if the accused is African-American and the accuser is White, you should imagine a White accused and an African-American accuser.

If your evaluation of the case is different after engaging in race-switching, this suggests a subconscious reliance on stereotypes. You must then reevaluate the case from a neutral, unbiased perspective.

Two hours after deliberations began pursuant to these instructions, this real jury, like the fictional one in A Time to Kill, acquitted.

The attorneys’ multipronged use of the race-switching idea merits special attention. Social science research suggests that jury instructions have limited success if used alone to combat bias. ( See, e.g., Randolph Jonakait, The American Jury System 198–217 (2003) (summarizing research).) But expert testimony on the particular form of bias (e.g., racial bias), especially if supplemented by an explanation of why most people are reluctant to part with their biases, can improve the likelihood that a carefully crafted switching instruction will make a difference. ( See, e.g., Andrew E. Taslitz, Rape and the Culture of the Courtroom 131-33, 194–95 nn.101–07 (1999) (summarizing research, especially concerning the impact of experts on racial and gender stereotypes).) Using the race-switching theme in trial preparation, jury selection, and voir dire should provide still further benefits.

Lee also offers sample instructions on the act-emotion reasonableness distinction. These instructions are too long to repeat in their entirety here. Lee does not recount any instance of a court yet using her reasonableness instructions. Those instructions first distinguish between the reasonableness or typicality of feeling an emotion and the normative reasonableness of acting on that feeling. Normative reasonableness, in turn, Lee defines for the jury in a flexible fashion, but one that stresses the jury’s obligation to find a sufficient measure of proportionality between the emotion elicited and the response then taken. Thus she finishes her model voluntary manslaughter provocation instruction this way: "Act reasonableness. The defendant’s acts . . . [must have been] normatively reasonable. A defendant’s acts may be considered normatively reasonable if the defendant’s response bears a reasonable relationship to the provoking act or incident." (Lee, supra, at 268.) Similarly, after mandating that jurors may find self-defense only if an assailant honestly and reasonably believed that use of deadly force was immediately necessary, Lee further instructs jurors that they must additionally find that the defendant’s actions are . . . reasonable. The defendant’s use of force is reasonable if:

(a) it is reasonably proportionate to the perceived threat; or

(b) it is the least drastic means reasonably available to avoid the threatened attack.

The instruction next continues to identify a list of six factors for jurors to consider in deciding whether the use of force was reasonable.

Lee emphasizes that her act/emotion instruction "is largely a clarification, rather than a revision, of existing self-defense doctrine." Indeed, a few states, like New Jersey, already expressly require juries to find both act and emotion reasonableness, at least in provocation cases. Furthermore, as the experience of the two Alaska lawyers representing the black teen who responded to a white student’s racial slurs reveals, the giving of race-switching instructions is well within judicial discretion under current law.

In short, Lee’s Murder and the Reasonable Man is a superb book of interest to novice practitioners wanting a fascinating in-depth review of the law of homicide, academics looking to stretch their minds, seasoned trial lawyers crafting case strategies, and anyone else who is just looking for a good read.




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