WHEN RACE BECOMES REAL - MURDER AND THE REASONABLE MAN: Passion and Fear in the Criminal Courtroom

In 1933, Pearl Reed noticed that her husband, Bubba, was missing from a church benefit supper. Eventually, she found him and a female church member wrapped in a sexual embrace by the side of the road. She shot at them both, but killed the woman.

The Texas Court of Appeals held that the Texas law that established adultery as legal provocation applied only to hot-blooded husbands who caught their wives in the act of adultery. Reed, cuckolded and outraged though she might have been, was fresh out of justice.

As the court made plain in Reed v. State, “If the Legislature…has not given equal rights to the wife as they have given to the husband…, the courts are without power to do so.” What was provocation for the gander was, well, nothing for the goose.

The law that snagged Reed had been around for two centuries. While in-his-face adultery was such an affront to a husband’s masculinity that he couldn’t help but kill his wife, apparently, a wife was expected to grimace and bear it.

Eventually, the adulterous-wife defense was extended to an even bigger pool of aggrieved men, including single men provoked to kill unfaithful girlfriends and married men not present at their wife’s adultery. Along with this expansion came a new standard for determining legally adequate provocation: the Ordinary Reasonably Prudent Man.

I first met the Ordinary Reasonably Prudent Man—“the ORP man,” we called him—in 1971, when I integrated by race, gender, class, and attitude a major southern white law school. The ORP man was the completely objective standard against whom everyone—male, female, black, white, native- or foreign-born—was measured. Over time, “ordinary” and “prudent” fell away, and he was called, simply, “the reasonable man.”

These days, reports Cynthia Lee, “the reasonable man” is being replaced by “the reasonable person.” I have to wonder, though, if the reasonable man has finally been cured of his maleness, how long before he’s cured of being white?

Reasonableness is rarely defined or explained, so juries often equate it with “ordinary” or “typical.” Unfortunately, a defendant who is a person of color in the US or who comes from a different country does not fit mainstream America’s vision of the ordinary or typical person. Consequently, these defendants’ beliefs and actions are often perceived as unreasonable.

Moreover, what is “typical” is not necessarily just or equal; it is often simply a reflection of the higher value the dominant culture places on whiteness, masculinity, and heterosexuality.

“Most of us are not aware that we make assumptions every day about people based on their race,” says Lee. “We think of racism as the intentional acts and beliefs of a few, not something we all engage in.” But stereotypes, particularly those based on race, gender, and sexual orientation are pervasive, and determine how we understand both others and ourselves.

No one has to tell a child, for example, that all blacks are criminals, all gays are pedophiles, and a real lady never gets mad enough to kill. She learns that by observing her parents, peers, and authority figures. As a grownup, taking her seat on a jury, she has a lifetime of learning that emphasizes as positive the attributes of those she thinks are like her and as negative the traits of those she thinks different.

This explains, says Lee, how “in a homicide case in which the victim belongs to a racial or ethnic minority group whose members are perceived as foreigners or immigrants, jurors may subconsciously minimize the harm suffered by the victim and be more willing to view the defendant’s use of force as reasonable.”

The same dynamic is at work in “gay panic” cases, so named because male defendants claim unwanted homosexual advances were so repulsive and shocking that murder was a reflex. Juries are often willing to overlook a defendant’s violent response, even when the homosexual advance was nonviolent. Further, a majority of such defendants are in their teens or 20s, white (67 percent), and male (94 percent). They can rely on jurors’ perceptions of them as normal and young and of their victims as deviant and old.

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A black man, armed with a concealed, unregistered .38-caliber loaded pistol, boards a subway train in a large city. He chooses a seat among four white boys. Two of the boys walk up to him. One smiles and says, “Give me five dollars.” Wordlessly, the black man begins firing. The boys scatter.

The black man notices that one seems to be unhurt. He walks up to him and says, “You seem to be all right, here’s another.” He then fires a bullet into the boy’s spinal cord and flees.

When arrested, the black gunman tells police that when he fired, he was certain none of the white youths had a gun. He admits that his intention “was to murder them…to make them suffer as much as possible.”

In his criminal trial, will the black defendant’s claim of self-defense be successful? Of course not.

But what if we imagine that the defendant is white and his victims black? Will this change the outcome? You bet.

This exercise—a jury-instruction reform Lee proposes and calls “race-switching”—is based on the well-known case of Bernhard Goetz, the white man who claimed self-defense after he shot four black youths on a New York subway.

“As a textbook criminal law hypothetical,” Lee points out, “Goetz’s claim of self-defense should have been rejected out of hand.” Instead, Goetz’s jury cleared him of all charges except for illegal possession of a firearm.

Racial minorities are more likely than whites to be crime victims, and criminals are more likely to be white. Between 1976 and 2000, 84 percent of whites killed were killed by other whites. But, damn the facts. Perception is everything. And what most Americans of all races believe is that African Americans, particularly young black males, are more dangerous, more violent, and more criminal than other members of society.

Consequently, when a defendant claims he honestly and reasonably believed he needed to use force in self-defense against a black victim, jurors are likely to believe him.

For defendants with Mexican or Latin ancestry, the “Latino factor” turns them into drug-pushing, knife-wielding illegal immigrants. In contrast, perceptions of Asian victims and defendants range more widely: from the meek “model minority” defendant to the martial-artist victim who had to be killed before he could kill.

The black-as-criminal image turns particularly deadly in the presence of gun-wielding police. Although blacks are only 13 percent of the total US population, in some parts of the country, they represent between 60 and 85 percent of the victims of police shootings.

Conventional wisdom and sociological studies say race has nothing to do with it. Families and communities, outraged, terrified, and mourning their slain loved ones, see it differently.

Lee shows clearly that juries’ attitudes about masculinity, sexual orientation, and race influence the verdicts in murder cases where a male defendant asserts he acted because of provocation or in self-defense.

“[Any] man who kills a Black or Latino male may be perceived as having acted reasonably in self-defense even if he would be considered unreasonable had he killed a White man under similar circumstances,” says Lee.

She questions the idea of reasonableness, asking whether it should be subjective or objective; the same or different for men and women; incorporate race, ethnicity, and sexual orientation; or include physical, mental, and cultural characteristics.

As is evidenced by the mountain of information she has amassed from sources including trial transcripts, books, law review articles, and even a movie and an Internet website, neither Lee’s allegations nor her conclusions are brand new.

What makes Murder and the Reasonable Man something to shout about, though, is the audience Lee targets for her discussion. She wants to get “ordinary people . . . talking with others about what constitutes reasonable provocation.”

“The problem with the reasonableness requirement is not that it exists, but the way it is applied,” she says.

Yet, despite all its flaws and the lopsided criminal justice system it underpins, Lee concludes that the standard of “reasonableness” should be preserved. Without it, she warns, the standard would be completely subjective. A jury would have to acquit a defendant as long as they believed he was telling the truth, no matter how ridiculous his claim of provocation or self-defense might be compared to the other facts.

In other words, Bernhard Goetz would be the standard of reasonableness.

Fortunately, such a total collapse of the criminal justice system is not inevitable and Lee has directions for everyone interested in the road to rescue. She challenges lawyers to drop trial strategies that exploit racism, sexism, and homophobia.

Drawing from examples in fiction and screenwriting, she also joins a growing vanguard of lawyers, professors, pundits and others when she urges judges to give race- and gender-switching jury instructions. Still, she recognizes that lawyers and judges are unlikely to be the most effective change agents.

After all, the system she criticizes reinforces their biases and privilege as members, for the most part, of the dominant culture. And, it pays them more than decent wages for being experts on how it works.

No wonder, then, that Lee’s highest hopes lie with ordinary people honestly confronting what lies beneath our social attitudes and beliefs about each other. As Murder and the Reasonable Man reminds us, these are the people who still get to decide exactly what “reasonableness” means.

Lee’s conclusion is simple: Justice requires one standard of scrutiny for every defendant where murder is the charge and reasonableness is the issue. And even when “the reasonable man” happens to be a woman, a person of color, or gay, that standard should never change.

This review appeared in the January 2004 issue of Women's Review of Books (Wellesley College Center for Research on Women).