The “Flesh and Blood” Defense As Refusal to Participate in the Judicial System

Why would African American defendants being prosecuted for in federal court on charges that could carry the death penalty adopt a bizarre defense developed by white supremacists, one that the trial judge himself  describes as legal “suicide”?

The full story of the evolution of the “flesh and blood defense” is described by Kevin Carey in his great article for Washington Monthly, but I think the meaning of the use of this defense is best summed up in an exchange between the judge and one of the defendants:

On the morning of January 10, 2006, two months after the first flesh-and-blood hearing, Gardner returned to Judge Davis’s courtroom. Moments after Davis arrived, Gardner stood up. “I object,” he said, over and over, until Judge Davis had finally had enough. “Do you know what you’re doing?” he asked Gardner. “You are committing suicide in broad daylight. There are public suicides in this country far too often. People jump off the Golden Gate Bridge, the Brooklyn Bridge. People walk into their workplaces with a gun and put the gun up to their head and pull the trigger. People slash their wrists. I don’t want you to join that community, but that’s what you’re doing, sir.”

Gardner tried to argue that the court had no power over him under “common law.” “At common law,” Judge Davis replied, “you were property. You were bought and sold just like those Timberlands on your feet today can be bought and sold. That’s what your ancestors were, some of them, and that is what my ancestors were, some of them.”

“You have invoked ideas formulated and advanced by people who think less of you than they think of dirt,” Davis continued. “The extremists who have concocted these ideas that you are now advancing in this courtroom are laughing their heads off. You are giving them everything they ever wished for. They should be paying you to do what you are doing. They are going to make you the poster child for their movement. When you complete this suicide, they will honor you because you are doing their work, better and more effectively than any of them ever dreamed they could do. Some of them—” “I object,” said Gardner, interrupting. “The government wants to do the same thing anyway. So what’s the difference?”

This is a revealing response. I take it to mean that the formalities of “due process” that these defendants are supposed to be thankful for and play along with ultimately don’t amount to much when the entire mechanism of the state is operating to produced the outcome of a “civilized” execution.  Indeed, given the Supreme Court’s remark in the 1987 case of McClesky v. Kemp , 481 U.S. 279 that racial disparities in death penalty sentencing are simply “an inevitable part of our criminal justice system,” even when there is overwhelming statistical proof of a pattern of bias, I think it’s a bit much to ask any defendant to adhere to the rhetoric of procedural fairness.