'He is the Darkey with the Glasses On': Race Trials Revisited

Abstract

Despite the advent of a new “post-racial” century, civil rights and criminal defense lawyers continue to construct racialized cultural and social narratives of minority inferiority and stigma. They do so in part because of a lack of shared professional guidelines regulating the use of race talk in courtrooms and in advocacy more generally. The absence of descriptive and prescriptive guidance in the regulation of race talk raises critical questions: When should trial lawyers normatively object to race talk? When should trial lawyers strategically exploit race talk? When should trial lawyers procedurally and substantively reintegrate race talk into the spoken and written texts of the courtroom? Built on the assembled work of a distinguished group of academics in the fields of criminal law, legal history, race and ethnic studies, trial advocacy, and outsider jurisprudence, this Essay extends work started elsewhere addressing the normative concerns, strategic and tactical considerations, and procedural and substantive rules relevant to race talk. That body of work alters previous efforts to map the contours of race trials and charts new research directions for the study of race trials. Both pedagogically and practically, the collective task is to rediscover the pain and the promise in the words we use for race.