The charge is armed robbery. The defendant’s lawyer declares at the outset that this is a case of mistaken identification. I had done everything I could to avoid being selected as a juror: my best Italian-wool suit, my French-cuffed shirt and my natty bowtie. Attire I had worn as a law professor to meetings with Wall Street lawyers before I retired. My outfit screams to the prosecutor, prompting him to ask the entire panel, “Have any of you ever been involved in a criminal case before?” I rehearse a response in my head so as not to appear too eager to avoid my civic duty. During my early career as a law professor, I served as the court-appointed lawyer for three different defendants’ appeals of their convictions. I plan to leave out the part about teaching criminal law for over a decade, unless the prosecutor asks.
I remain silent during the jury selection process until the prosecutor asks if any of us knows other prospective jurors. My neighbor Lynn glances at me and volunteers that we know each other from church. I add that we sometimes cycle together. Maybe one or both of us will be eliminated?
We are not. Lynn sits in the second row and I in the front row nearest to the witness stand, at a 45-degree angle from two public defenders and the defendant, a light-skinned black man in his 20s with neat corn rows, dressed in dark slacks and an open-collared shirt. I immediately focus on his oval face, his Romanesque nose, his blank eyes. The prosecution presents three witness, the defense none. The trial takes less than an hour and a half.
We enter the jury room with the judge’s instructions, which include picking a foreman before we begin deliberations. I notice that the jury is overwhelmingly female, two of whom are black. There is only one other man. I speak first.
“My neighbor, Lynn, would be a good foreperson. She’s an ordained minister. Although not currently in a pastoral role, she is an experienced facilitator. Besides, a predominantly female group’s deliberations should be led by a woman.”
“Not so fast, friend,” Lynn interjects. “You’re a retired law professor. I think you should be the foreman as a way to make sure you don’t talk too much.” After a few peals of laughter, I am selected as foreman by acclamation.
Before I say anything else, one of the black women goes straight to the point of misidentification, blurting out: “Yesterday, a white co-worker called me by the name of another black coworker. And it’s not the first time either!”
The other black woman, perhaps emboldened by the skepticism of the first speaker, declares: “I don’t believe the prosecutor’s assertion that the jeans worn by the defendant are unique. My brother has a pair just like that!”
She was referring to the fact that the robber in the surveillance video wore jeans with embroidered white wings along the outside seam and the accused had on jeans with the same design in the photo taken after his arrest. Several other jurors and I were unable to see the video when the prosecutor played it in court, so I suggested we should all view it together. I ask the sheriff deputy outside the deliberation room to bring in the video.
Despite the prosecutor’s assurance that we would clearly see the accused in the video, the only thing I see on the screen is a dark-skinned faceless person wearing a hoodie and a pair of jeans. Without any prompts from me, several other jurors share their questions about the prosecution’s evidence. The only other male juror points out that the robber in the video took a bottle of pink fruit punch, but the accused had Arizona Tea in a tan can when arrested a few blocks from the store. One of the white women offers that the prosecution never explained what happened to the cash the robber in the video grabbed, his shiny pistol or the hoodie he wore — all in the few minutes, according to the police officer, between the robbery and the detention of the accused.
“The video is of such poor quality that I can’t see his face clearly enough to tell whether there is any resemblance to the young man I stared at for over an hour in court,” I interject, my only contribution before I ask if everyone is ready to vote. In less than 10 minutes, we vote to acquit. The defendant stands stoically between his two lawyers as I announce, “Not guilty.”
Even now, the tears of joy and hugs of relief among the defendants’ family and supporters as I announced the verdict remind me of the pervasiveness of racial misidentification in our culture. I often wonder what might have happened had I – a black retired law professor – not been on that jury. I remain a bit ashamed of my attempts to avoid jury duty.
A few days after the trial, the public defenders sent me an email requesting a meeting to discuss the jury’s deliberations. They thought my insights into the jury process might help them in future cases. At our gathering, the public defenders revealed that the prosecutor and judge thought the case was airtight. A surveillance video of a dark-skinned young man seemingly should overcome any doubts a jury would have about the gaping holes in the evidence offered to prove – beyond a reasonable doubt – that the accused was the robber.
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Forty years earlier, a man behind me places his twitching index finger on my shoulder as I sit awaiting a flight at Boston’s Logan Airport and introduces himself: “If you’re not who I think you are, you have nothing to worry about. I’m a federal customs officer.” He commands me to get up, walk quietly down a hallway to my right without looking back at him and enter the first door on the left. Once inside the windowless room, he shows me his badge and orders me to show him my identification. Apparently, this armed federal officer, with beads of sweat forming on his forehead, saw a resemblance between me and a photograph of an escaped prisoner that he shows me after examining my identification. I quash my fear of this armed and jittery police officer in order to conjure up a Zen-like calmness.
The price of suppressing my sense of terror during those moments with the officer did not emerge until over an hour later, after I arrived in Philadelphia. I relived each second, as if awakened from a nightmare, while I drove to my South Jersey home. Did I risk being held longer when I ignored his request to affirm my resemblance to the man in the mug shot? Was it stupid not to look at the officer before I followed his command to enter that windowless room? What if he had been an attempted robber? I became engrossed in my mental gymnastics about what might have happened had I allowed my anger to control my behavior that I missed my exit on the interstate. I drove 20 miles too far before I noticed my mistake. Suppressed anger – and fear – is potentially dangerous.
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Shortly after I moved to Richmond, Virginia, a decade ago, I met Albert, a young black man, at an ecumenical retreat center dedicated to racial reconciliation in the city. He invited me to attend a fundraiser for an arts organization in which he was involved that sponsored programs for “disadvantaged youth” on the east side of town (meaning: black kids). He was so earnest, and I was so new to Richmond, I agreed. I made a modest donation to the organization, which served as my entry ticket to the fundraising reception in a house near where I live — not on the east side, but in the predominantly white west side of town, on Monument Avenue. A history hangs over all of us living in Richmond in its 21st century progressive resurrection. Slavery, the Civil War, Jim Crow and two decades of Massive Resistance to Brown v. Board of Education frame individual interactions between white and black strangers as asymmetrical.
One way I try to equalize my standing in new social settings is to always dress in professional attire. In preparation for my first encounter with some of Richmond’s arts patrons, I adorn my body in a pin-striped suit and perfectly handtied silk bowtie, perhaps unconsciously hoping to be seen as a black Washington lobbyist from K Street. As my mother always told me, clothes make the man.
I ruminate about the statue of Jefferson Davis, the president of the confederacy, as I walk to the large early-20th-century house where the reception takes place. The Davis statue and those honoring confederate generals in the roundabouts along the avenue were erected during the height of the Jim Crow era. Although referred to as “Civil War monuments,” in my mind I rename them “post-Reconstruction white supremacy icons.”
I let go of my musing as I climb the steps to the mahogany-framed door and its clear glass panel, expecting to meet Albert inside. As I stand in the foyer, I don’t spot him among the mostly white crowd nibbling hors d’oeuvres and sipping wine and beer in the adjacent expansive parlor and dining room. I look behind me and see Albert through the leaded glass of the front door walking up the steps with a young white woman. I wait for them, open the door and smile broadly at Albert as if to say, “I promised you I would come.”
Albert introduces me to his female companion, the white executive director of the arts organization. As they both greet people they know, I float among the crowd, answering the attempts at get-to-know-you questions from strangers. I just moved to Richmond; I live nearby in a condo; my wife works at the Library of Virginia; I teach a course at Georgetown Law. I suddenly notice Albert approach me, his companion no longer by his side. His eyebrows are knitted into a frown, his upper lip droops in defeat over his lower jaw as he proclaims, “She thought you were the butler.”
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The buzz of Handel’s “Hallelujah Chorus,” sung as the Easter Sunday postlude, fizzles out as I fight the simmering anger at being mistaken, yet again, for a black man a decade my junior. How could the elderly white man fail to see my church-designed nametag emblazoned with a colorful “Larry Palmer” on my left lapel? We both worship regularly at this overwhelming white, downtown, progressive Protestant church. I know him whether he is wearing his nametag or not. In addition, I’m one of only two or three black men who attend the church. Before I can correct him, I feel myself becoming numb inside, struggling to brush off the failure of yet another congregant to look at black faces. I can’t shake off the hurt with an adage I heard growing up: “White people think all black people look alike.” My rage overtakes my intellect as I flee to an empty room adjacent to the fellowship hall to relive in solitude all the times I have been mistaken for other blacks by church members.
At a holiday party the previous Christmas, a middle-aged white woman from my church greets me as “Brian.” I don’t (re)introduce myself to her, but instead walk away. My model minority upbringing doesn’t want to disrupt the Advent unity among all these supposedly liberal-minded, racially tolerant white people. What good would a lecture do about how insulting it is to know a person can’t see your face as distinct from other faces of black men? But I wonder what price I pay for having to endure a version of white privilege that maintains as long as I, a white person, mean no harm, you, as a black person, need to get over it.
A year before, a different white woman confused me with Tom — a man 30 years my junior with two young children. Admittedly, I am friendly with Tom’s biracial children and his white wife and mother-in-law, but I never actually sit with them in church. I was dumbfounded during fellowship hour when this white woman asked me how my cute young children were doing. I laughed when I told Tom about the incident. He and I sometimes joke about the “confusion” when we see each other. Shortly after President Trump’s inauguration, Tom asked me, “How are things going for you and Michelle since leaving the White House?” This private humor between two blacks in a predominantly white setting hides hurt and anger, indeed seething outrage — a form of distancing from fellow worshippers that is the antithesis of community building. If I can’t express my anger and disappointment about how I am treated by other members of my church, how can we form the bonds of fellowship?
I acknowledge that some unknown percentage of my congregation is oblivious or perhaps indifferent to the insults and potential harm of their inability to distinguish one black face from another. I refuse to accept the notion that white people are somehow genetically incapable of distinguishing one black from another. I know too many white people who would never misidentify me as someone I look nothing like. I also refuse to accede to the notion that I should bury the insult of racial erasure for some imagined church unity.
I must remember a lesson I learned on my very first day at a virtually all-white New England prep school nearly 60 years ago. A white boy from Texas I had just met used “nigger” to insult another white boy sitting at our lunch table. All the boys at the table lived in my dormitory. I was the only black person in the entire dining room. I ended the silence that halted our chatter by finding a way of humbling the 14-year-old speaker of the racial epithet without humiliating him. I breathed deeply and told him not to use that word in my presence because it hurt my feelings. His fumbling apology allowed us to become friends and wrestling teammates during our four years living at school.
The next time someone at church confuses me with another black man, I will try to take a deep breath and recognize the cultural problem staring me in the face. I need the courage to calmly say: “Do you realize I don’t look anything like _____ ? It’s insulting that you have never bothered to look either of us in the face and see our individual distinctiveness. If you think I am too racially sensitive, you are experiencing white privilege. I’m Larry. Call me by name.”
Larry I. Palmer, professor of law emeritus at Cornell University, currently writes literary non-fiction. His memoir, “Scholarship Boy,” will be released next year. He is an elder in the Presbyterian Church (U.S.A.), serves on the PC(USA) Board of Pensions and is a member of Second Presbyterian Church in Richmond, Virginia.
This piece appeared originally in Volume 17, No. 2, Fall 2018 of an online journal produced by Virginia Commonwealth University, “Blackbird: an online journal of literature and the arts,” and appears here with the permission of the author.