Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis

Abstract

This article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect rhetorical deployment of powerful racial stereotypes. The crux of the problem is that courts typically only take exception to blantantly racist appeals, even though implicitly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric (or persuasion through oration) to describe various techniques of intentional indirectness that prosecutors have used to obviate the possibility of effective appellate review of racist argumentation, especially under the stringent standards of the Fourteenth Amendment.

Keywords: rhetoric, argumentation, closing arguments, summations, racism, critical race studies, appellate review, rhetorical theory, stereotypes, prejudice

JEL Classification: K19