Trial Briefs
Lawyers Must Challenge Racist Symbols in Courthouse Spaces
In the early 1990s, as former Public Defender James Williams arrived at the Chatham County Courthouse, he could hardly miss the Confederate monument adorning the traffic circle out front. A Black attorney who grew up in eastern North Carolina during Jim Crow, Williams found the monument “very disturbing. It brought back memories from my youth. I’ve seen cross-burnings. I saw the Klan attack people at civil rights demonstrations. To me, that monument meant nothing but racial hatred and terror.” Aside from his own feelings, Williams felt even more concern for his client, a Black man facing charges of capital murder. “I really questioned whether we could find justice in a courthouse with such a hateful symbol so prominently displayed.” Williams managed to keep his client off death row, but over the years, he heard the same concern from witnesses, clients, their family members and other lawyers, all questioning the presence of the many similar monuments across our state.
There are 42 Confederate monuments standing in front of North Carolina courthouses.1 According to University of North Carolina historian Dr. Fitzhugh Brundage:
Confederate memorialists intentionally located monuments in front of the most important civic buildings, especially courthouses, and along the most important thoroughfares in their communities. The location and timing of the Confederate monument boom from 1890 to 1920 was directly tied to the political objectives of the sponsors of the monuments …
Monument sponsors looked to the monuments to reassure white southerners that the “Old South” had been the most perfect civilization yet attained, that slavery had been benign, that the Confederacy had been a valiant and noble experiment, and that the region’s white elites were the best guardians of white supremacy. Sponsors made these aims clear in their fundraising appeals, in their dedication speeches, and in the inscriptions on the pedestals of many monuments. The monuments, sponsors hoped, would teach these lessons in perpetuity. 2
In June 2021, the North Carolina Bar Association adopted a statement encouraging a careful review of North Carolina’s courthouse spaces because “[i]f elements of the physical surroundings foster the perception of preference, bias, or prejudice, our court spaces cannot reflect fairness, respect, and equal justice to all who come there to seek it.”3 As attorneys, we must be part of this reckoning. With this article, we hope to encourage and empower attorneys to challenge monuments glorifying white supremacy when they threaten to prevent our clients from obtaining justice.
Look around any courtroom and you will see symbols. The judge’s robes. Flags. The official seal of North Carolina. These symbols are placed in courtrooms to inspire respect for our judicial institutions and create a sense that the serious matters heard within these spaces are indeed taken seriously. “[T]he setting that the courtroom provides is itself an important element in the constitutional conception of trial, contributing a dignity essential to the integrity of the trial process.”4 The Code of Judicial Conduct imposes on courts a duty and obligation to ensure that proceedings are fair and impartial, not only in reality, but also in perception.5
Symbols are powerful. In 2001, the Fourth Circuit recognized that display of the Confederate flag gives the inference of racial bias.
It is the sincerely held view of many Americans, of all races, that the confederate flag is a symbol of racial separation and oppression. And, unfortunately, as uncomfortable as it is to admit, there are still those today who affirm allegiance to the confederate flag precisely because, for them, that flag is identified with racial separation. [Thus], it is not an irrational inference that one who displays the confederate flag may harbor racial bias against African-Americans.6
In 2015, the U.S. Supreme Court upheld Texas’ decision to reject a specialty license plate design that featured the Confederate flag, which the state had declined “because public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.”7 The decision rested, in part, on the Court’s earlier holding in a 2009 case which had characterized permanent monuments displayed on public property as “government speech.”8 In both cases, the Court recognized that “[g]overnments … use[ ] monuments to speak to the public” and to “convey some thought or instill some feeling in those who see the[m.]”9 These cases support the view that permanently rendered Confederate monuments on courthouse grounds amount to government speech and that it is reasonable to interpret the message they send as one of racial hostility toward people of color and of veneration of white supremacy.10
In some places, the monuments, by their text, admit to no other interpretation. The monument located feet from the front door of the Tyrrell County Courthouse in Columbia, North Carolina, for example, pays tribute to the “Confederate Cause” and stands “In Appreciation of Our Faithful Slaves.” According to Duke psychology professor John Blackshear, seeing such monuments given a place of honor in a courthouse setting can “be psychologically harmful and dispiriting” and “suggest to African Americans that the court system does not serve them with equity and justice.”
The problems these monuments create are not simply a matter of perception. People’s reactions to them may impact their decisions and actions inside the courthouse, which can affect the quality of justice litigants receive. According to Dr. Blackshear, “feeling unwelcome in the courthouse, potential African American jurors may attempt to avoid jury service rather than remain in the courthouse that displays a commitment to the values of racism and white supremacy.”
Moreover, “for white individuals who already hold consciously racist views, Confederate monuments may reinforce beliefs that racism and disregard of justice for people of color, African Americans in particular, are acceptable and supported by the court.” When people with such views serve as jurors (or judges or lawyers), they may feel consciously empowered to follow racist ideology in their decision-making.
The monuments may also contribute to unconscious or implicit race-based biases. One study found that white subjects primed with the Confederate flag prior to being asked to evaluate the behavior of a hypothetical Black man found him to be more aggressive and selfish than did a control group.11
Meanwhile, says Blackshear, “white individuals who are committed to equity and justice for all may find themselves intimidated and discouraged from full participation in the judicial system if they interpret Confederate monuments and other symbols of white supremacy as signifying that their commitment to fairness is not supported or tolerated.”
In recognition of symbols’ potential to influence parties, jurors, witnesses and citizens, some courts have decided to remove images that convey a message of injustice. In December 2020, our state Supreme Court removed the portrait of enslaver and defender of slavery12 Thomas Ruffin from its place of honor over the bench. At that time, former Chief Justice Cheri L. Beasley said that “[i]t is important that our courtroom spaces convey the highest ideals of justice and that people who come before our Court feel comfortable knowing that they will be treated fairly.”13
In 2015, Judge Martin F. Clark Jr. of the Circuit Court of Patrick County, Virginia, ordered a portrait of Confederate General J.E.B. Stuart removed from his courtroom.14 Judge Clark found that “Confederate symbols are, simply put, offensive to African-Americans, and this reaction is based on fact and clear straightforward history. Bigotry saturates the Confederacy’s founding principles, its racial aspirations and its public pronouncements.” Judge Clark went on to state, “The courtroom should be a place every litigant and spectator finds fair and utterly neutral. In my estimation, the portrait of a uniformed Confederate general — and a slave owner himself — does not comport with that essential standard.” Judge Clark subsequently received the Virginia State Bar Professionalism Award, in part because of his actions in removing the painting of the Confederate icon from his courtroom.
The Raleigh News & Observer reports that, across North Carolina, “at least 23 [monuments to the Confederacy] have been removed [since 2015] — some out of a stated desire to break with racist history and some out of fear they would be vandalized.”15 This has occurred despite the passage of a 2015 law to protect and render permanent all of the state’s remaining monuments to the Confederacy.16
Attorneys who practice in courthouses with Confederate monuments or other symbols of white supremacy should educate themselves on the history of the monument in their community by consulting resources like those compiled by the N.C. Campaign to Remove Confederate Monuments, a project of the N.C. Commission on Racial and Ethnic Disparities in the Criminal Justice System (NC-CRED).17 In many places around the state, much can also be learned from local groups and organizers mobilizing for the monuments’ removal. Attorneys should seek affidavits from local residents about the harms caused by the monument, highlighting the effect of the monument on people of all races.
Attorneys might argue that the presence of the monument, in a place of honor near the courthouse, where it will be viewed by witnesses and jurors every day, introduces the risk that impermissible factors such as implicit bias, conscious prejudice, and sympathy for white supremacy will harm our clients’ rights. We should describe monuments to the Confederacy as an affront to the dignity and decorum of the judicial proceedings. In criminal cases, we should cite our clients’ rights to due process, equal protection and a fair jury, and, in a capital case, the Eighth Amendment. In both civil and criminal cases, attorneys might consider filing motions asking the court to cover the monument or to change venue to a courthouse that does not have one.18 We might also use a monument’s presence to support a motion to instruct the jury about implicit bias or to defend our ability to ask questions about race in jury selection or reference race in closing argument.
Not all judges will be receptive. In a pair of recent concurring opinions, two members of the N.C. Court of Appeals rebuked a criminal defense attorney for alluding to systemic racial inequities in the course of her argument on an individual case. The judges characterized such advocacy as “not helpful to maintaining public confidence in the judiciary or the practice of law generally.”19 The case, State v. Johnson, is a reminder that not all courts will welcome arguments and motions that address issues of race. Yet the judges’ focus on the maintenance of public confidence in the judiciary seems apt here. It is difficult to imagine anything an attorney could say about a physical tribute to slavery and its proponents that could undermine public confidence in the law more than the presence of such a monument itself.
It can take courage for us to raise issues of race in the courtroom, and it may often feel uncomfortable. Yet as the growing diversity of the North Carolina bar attests, today’s legal community has benefited from the work of earlier generations of lawyers, who often faced significant opposition when confronting racial injustice. As caretakers of the state’s legal institutions, attorneys today bear a special responsibility — to our clients, to the public and to future members of our profession — to make all of our court spaces worthy of the word “justice.”
1 Map & Directory, N.C. Campaign to Remove Confederate Monuments,
www.ncconfederatemonuments.org/map.
2 Fitzhugh Brundage, Confederate Monuments and Their Significance (Jan. 27, 2021), https://ncconfederatemonuments.org/wp-content/uploads/2021/02/confederate-monuments-and-their-significance-revised-01-27-2021.pdf.
3 N.C. Bar Ass’n, NCBA Statement on Court Spaces (June 7, 2021),
www.ncbar.org/members/diversity-and-inclusion.
4 Estes v. Texas, 381 U.S. 532, 561 (1965) (internal quotations omitted). 5 N.C. Code of Judicial Conduct (as amended Nov. 6, 2015), www.
nccourts.gov/assets/inline-files/NC-Code-of-Judicial-Conduct.pdf. 6 United States v. Blanding, 250 F. 3d 858, 861 (4th Cir. 2001).
7 Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.
200, 206 (2015) (quoting Texas Department of Motor Vehicles Board).
8 Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470 (2009).
9 Walker, 576 U.S. at 209–10 (quoting Pleasant Grove City, Utah v.
Summum, 555 U.S. 460, 471, 476 (2009).
10 Scott Holmes, Do Public Confederate Monuments Constitute Racist Government Speech Violating the Equal Protection Clause?, 41 N.C. Cent. L. Rev. 1, 46 (2019).
11 Cecelia Trenticosta & William C. Collins, in their article, Death and Dixie: How the Courthouse Confederate Flag Influences Capital Cases in Louisiana, 27 Harv. J. Racial & Ethnic Just. 125, 140–48 (2011).
12 Ruffin wrote, “the power of the master must be absolute, to render the submission of the slave perfect.” State v. Mann, 13 N.C. 263, 266 (1830).
13 N.C. Judicial Branch, Supreme Court to Remove Portrait of Chief Justice Thomas Ruffin from Its Courtroom (Dec. 22, 2020), www. nccourts.gov/news/tag/press-release/supreme-court-to-remove-portrait-of-chief-justice-thomas-ruffin-from-its-courtroom.
14 Martin F. Clark Jr., Full Statement from Judge Martin Clark, Martinsville Bulletin (Sept. 2, 2015), www.martinsvillebulletin.com/news/full-statement-from-judge-martin-clark/article_64b4324e-5188-11e5- ab3f-ebd59f1b26bf.html.
15 Josh Shaffer, NC Officials Have Taken Down Over 20 Confederate Monuments Recently. Here’s Where, News & Observer (Oct. 27, 2021).
16 N.C. Gen. Stat. § 100-2.1 (2015).
17 N.C. Campaign to Remove Confederate Monuments,
www.ncconfederatemonuments.org.
18 The U.S. Supreme Court has said that “courts of justice are universally acknowledged to be vested, by their very creation, with power to impose … decorum[.]” Anderson v. Dunn, 19 U.S. 204, 227 (1821). The Supreme Court of North Carolina has similarly recognized that trial judges have the inherent authority to “preserv[e] proper decorum and appropriate atmosphere in the courtroom during trial,” an authority that extends throughout the courthouse. State v. Tolley, 290 N.C. 349, 363 (1976).
19 State v. Johnson, slip op. at para. 44 (N.C. Ct. App. Sept. 21, 2021) (Carpenter, J., concurring) (No. COA20-564); see also id. at para. 41 (Griffin, J., concurring) (describing the attorney’s argument, as well as a statement by former Chief Justice Cheri Beasley, as “inflammatory,” and rejecting assertion “that U.S. citizens are treated differently under our laws based on the color of their skin”).
