The Louisiana Supreme Court has under review a novel argument in a death penalty appeal: did the presence of the Confederate flag in front of the courthouse violate the defendant’s due process rights?
After thirty years as a registered voter in Caddo Parish, Louisiana, Carl Staples received his first summons for jury duty. He was directed to report to the Caddo Parish courthouse on May 14, 2009, where a jury was being selected for the capital trial of Felton Dejuan Dorsey. Before proceeding to the courthouse, Mr. Staples called the clerk’s office to object to serving on the jury. The clerk told him that if he failed to appear, a judge would issue a warrant for his arrest. Mr. Staples reported for jury duty on May 14, as ordered. He walked past the towering Confederate monument and Confederate flag erected in front of the courthouse. When called to the jury box, he explained:
[The flag] is a symbol of one of the most…heinous crimes ever committed to another member of the human race, and I just don’t see how you could say that, I mean, you’re here for justice, and then again you overlook this great injustice by continuing to fly this flag which…put[s] salt in the wounds of…people of color. I don’t buy it.
The State promptly removed Mr. Staples, who is black, for cause, and struck five of the remaining seven prospective black jurors (71 percent). In contrast, the State only struck six of 27 prospective white jurors (22 percent). The trial judge rejected defense counsel’s Batson challenge. A jury of eleven whites and one black ultimately convicted Felton Dorsey and sentenced him to death on July 7, 2009.
On May 9, 2011, at a hearing before the Louisiana Supreme Court on Mr. Dorsey’s direct appeal, his lawyers argued, among other things, that the presence of the Confederate flag was so prejudicial that it impaired the fairness of the trial and violated Mr. Dorsey’s due process rights. As Mr. Dorsey argued in his brief, “ the quintessential symbol of white supremacy looms over the courthouse.”
In 1903, a time when the white citizens of Caddo Parish were still violently resisting the implementation of the Civil War Amendments, the Caddo Parish Police Jury voted unanimously to reserve the front plot of the courthouse square for a monument to commemorate Caddo as the last stand of Confederate Louisiana. The front face of the monument bears the words “LEST WE FORGET,” and each of the four corners displays the bust of a Confederate leader: Stonewall Jackson, P.G.T. Beauregard, Henry Watkins Allen and Robert E. Lee. The rear face of the monument is inscribed with a dedication “To The Just Cause, 1861-1865,” and atop the monument stands a lone confederate soldier clutching his rifle. When the monument was dedicated in 1906, no flag flew from its steps.
It was not until October 17, 1951, a period often referred to as the “Second Reconstruction,” that the Caddo Parish government raised the Confederate flag at the courthouse. The flag symbolized the segregationist movement and resistance to change in the 20th Century. For many residents of Caddo, the flag continues to evoke strong emotions.
“When I was screened for the jury, it welled up inside of me and I expressed my feelings,” Mr. Staples explained in a later interview. “I don’t understand how judges or lawyers allowed that flag to stand,” he added. Sam Roberson, a Shreveport minister who attended Mr. Dorsey’s hearing, described the flag as flying about 60 feet above the ground, dominating the landscape, and overshadowing the American flag. “It’s the first thing you encounter when you approach the courthouse,” said Roberson. “It symbolizes, to me, racism. I hope justice will be done.”
The display of Confederate flags on state property has been challenged on other constitutional grounds in the past with no success. In 1988, the NAACP filed suit for a declaratory judgment that the presence of the Confederate flag atop the Alabama Capitol Dome violated the equal protection clause of the 14th Amendment, as well as the 1st and 13th Amendments. In NAACP v. Hunt, the 11th Circuit held that all claims were precluded by res judicata from a similar challenge to the flag in 1975. However, the court nonetheless proceeded to discuss the merits of the case, explaining, “Because of the controversial concerns raised in this case, it is important that all issues be laid to rest on the merits.” The court went on to reject all of the plaintiffs’ claims. In denying the plaintiffs’ equal protection claim, the court held, “there is no unequal application of the state policy; all citizens are exposed to the flag. Citizens of all races are offended by its position.” In 1997, the 11th Circuit rejected a challenge to the Georgia state flag, which at the time combined the Confederate battle flag with the Georgia state seal. In Coleman v. Miller, James Colemen alleged that the Georgia state flag violated his rights to equal protection under the 14th Amendment and freedom of expression under the 1st Amendment. The 11th Circuit granted summary judgment for the State, on the grounds that Mr. Coleman failed to prove a disproportionate racial effect.
Mr. Dorsey’s due process argument is believed to be unprecedented, because of the difficulty of finding evidence in the record that demonstrates the flag’s impact on the trial. Cecelia Trenticosta, counsel to Mr. Dorsey, had previously considered challenging the Confederate flag in Caddo, but this was the first occasion where evidence in the record supported the claim. “This flag has been flying for 60 years, and a brave citizen finally spoke up and said the emperor is naked,” said Ms. Trenticosta, who is a staff attorney at the Capital Appeals Project in New Orleans.
The ACLU filed an amicus brief on behalf of 26 Caddo Parish and other Louisiana clergy leaders, 28 law and history professors and scholars, the ACLU, the NAACP Shreveport Chapter, the Equal Justice Initiative, and the Southern Center for Human Rights, among others. “This is an opportunity for the court to say the influence of racism and bias in capital sentencing is intolerable,” said ACLU attorney Anna Arceneaux.
In its reply brief, the District Attorney’s Office did not address the Confederate flag, and denied that prosecutors discriminated against blacks in selecting the jury. The Louisiana Supreme Court is expected to issue an opinion in the coming months.