Academic journal article The University of Memphis Law Review

Breaking the Frame: Responding to Gang Stereotyping in Capital Cases

Academic journal article The University of Memphis Law Review

Breaking the Frame: Responding to Gang Stereotyping in Capital Cases

Article excerpt

I. Introduction .................................................................................................... 1027

II. The Patrick Stout Case ....................................................................................................103 1

A. The Arrest. ...........................................................................1031

B. ne Trial ....................................................................................................1032

C. The Counter-Narrative ....................................................................................................1035

III. Gangs and Stereotypes ...........................................................................1040

A. The Social Cognition Theory of Stereotyping ...........................................................................1042

B. Gangs and Stereotyping ...........................................................................1048

C. Countering the Frame ....................................................................................................1052

IV. Conclusion: Back to Patrick Stout ....................................................................................................1057

I. INTRODUCTION

In violent felony cases, and especially in capital murder cases, prosecutors often attempt to demonize the defendant and evoke fear in the minds of jurors. When the defendant is identified with a gang, prosecutors use misleading and widely held stereotypes to great advantage. Professor Craig Haney, in his seminal article on mitigation in capital cases, points out that the demonization of perpetrators of violence depends on "misleading stereotypes" and "partial truths that distort the painful realities that plague the lives of capital defendants." Professor Haney explains,

Indeed, as one gang researcher has noted, the media has reinforced a "folkloric myth" concerning gangs in our society, one in which gangs themselves have been given: "demonic qualities. For gangs ultimately are depicted as not only physically threatening average, law-abiding citizens, but also as undermining the morals and values of the society as a whole. They are carriers of moral disease within the social body."2

Ordinarily, preconceived notions about a member of a certain population can be challenged with a counter-narrative. For instance, often during the sentencing phase of a capital case, lawyers can effectively argue that the defendant is not the coldblooded killer portrayed by the prosecution, but rather a tragic product of a toxic environment. Seen in this light, jurors may be willing to consider a penalty other than death, based upon a counter-narrative about the defendant's life that challenges the prosecution's narrative and evokes empathy for the defendant.

With cases involving gang members, however, jurors may seem immune to a compelling counter-narrative. Their personal framework for evaluating a defendant's culpability can be almost impermeable. Any counter-narrative about the defendant that challenges their preconceived ideas about gangs may simply be disregarded or misinterpreted by the jurors without affecting their sympathies.

A revealing monograph on prosecuting "gang cases," published by the American Prosecutors Research Institute ("APRI") for use by prosecutors, details how prosecutors reinforce the folkloric myth of gangs in the minds of jurors:

Few things evoke fear in a community like the incursion of gang activity. . . . Gangs are spreading; they are on your doorstep even if you don't realize it. . . . Faced with the prospect of defending a case involving gang evidence, defense attorneys cower. Understanding the power of such evidence, the defense bar will try almost anything to prevent a prosecutor from admitting gang evidence against their client. The first and most clamorous cry is always the same: "Objection! Gang evidence is prejudicial. …

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