Kornegay v. State

Deen, Presiding Judge,

concurring specially.

The majority opinion and dissent directly focus on the key issue in this case of whether, in view of the offensive language used by the defendant’s own lawyer, the jury was allowed to regard defendants as *284“racially inferior persons,” infecting the jury verdict and causing harmful error.

During the closing argument, the prosecutor and defendants’ counsel have wide latitude in drawing conclusions and deductions from the evidence, however illogical, unreasonable, or absurd. Griffin v. State, 170 Ga. App. 287, 292 (316 SE2d 797) (1984). Even characterizations equating parties to the case as a brute, beast, an animal, and a mad dog have been held not to be error. Miller v. State, 226 Ga. 730 (5) (177 SE2d 253) (1970); Shelton v. State, 146 Ga. App. 763, 766 (247 SE2d 580) (1978). There is a distinction with a difference, however, in categorizing defendants as “animals” on the one hand and in resorting to slurs such as “nigger,” “sons-of-bitches,” and “bastards” (and declaring that they would have been fit for lynching had the same conduct been exhibited 40 or 50 years ago) on the other. The former flight of oratory, while extravagant, is nevertheless allegorical, poetical, and mythical, while the latter are literal, personal slurs and attacks on a human being, and definite character assassination. Crude and personal slurs against one’s race, creed, sex, religion, ancestry or national origin should have no place in twentieth century jurisprudence.

The dissent relies chiefly on Hoxie v. State, 114 Ga. 19 (3) (39 SE 944) (1901), wherein the prosecutor during closing argument uttered that “[n]egroes, as a rule, are of low moral status; they care nothing about the marriage relation; they just take up with each other and stay until they get tired or find some other one they like better, and go off and take up with another, and never think about marrying.” Several observations are offered about Hoxie: (1) while Hoxie was written at the turn of the century at a time when racial slurs were perhaps more common, and, unfortunately, not necessarily thought of by some as grossly improper, the court there still concluded that the prosecutor’s racially derogatory remark was highly improper; (2) the Supreme Court in Hoxie, forthrightly and without equivocation as should be done in most cases, did not shy away from identifying and setting out in detail the objectionable comment so that there could be no question about its condemnation (and this court must do no less here despite anyone’s embarrassment or indignation. If this court is ever in doubt as to inclusion or exclusion of salient, applicable facts, then we must always lean toward the former rather than the latter); (3) the prosecutor’s comment in Hoxie was obnoxious not for use of any racially inflammatory words, but its superior and supremist racial implications and attitude alone; (4) whereas in Hoxie the improper comment was made by the prosecutor (and objected to by the defendants’ attorney), in this case the defendants’ own lawyer uttered the previously mentioned derogatory remarks. In short, the improper language used in this case obviously were far more inflammatory, and *285equally derogatory (or more), than those in Hoxie, and there was no one in the courtroom here to object to such on behalf of the defendants.

The attitude (and language) practiced by the defendants’ lawyer in this case has demonstrated itself to be a time-dishonored one. Even the courts during the nineteenth century were occasionally guilty of similar indiscretion. See Choice v. State, 31 Ga. 424, 473 (1860) (“Ethiopian to change his skin”); reference is also made to the memorial honoring deceased judges contained in 83 Ga. 807, 814 (1889). Compare some of the language in the anecdotes about the parties, .lawyers, and judges in some actual Georgia trial cases recounted by one of the first judges of this court, Arthur Gray Powell, in his book, I Can Go Home Again (originally published in 1943). Probably the most popular single publication during the nineteenth century was “On the Origin of Species by Means of Natural Selection or the Preservation of Favoured Races in the Struggle for Life” (emphasis supplied), which is still held in high esteem by many today. The underlined subtitle provided inferences for many that class structure was fixed by the laws of nature in a type of racial survival of the fittest, but this connotation is now de-emphasized even by those who accept and are believers of the major concept advanced in this much read publication.

The majority opinion relies upon twentieth century ABA standards for criminal justice, which are calculated to deter inflaming the passions and prejudices of the jury. This court should adopt the majority opinion and guidelines set up therein, and reject the ancient and outmoded views of a bygone era. The grossly improper language of racial slurs made during the trial, even though without objection, cannot be sanctioned in this case. It should be emphasized that reversal in this case is demanded by the totality of the circumstances. It may be that a solitary remark of the nature here condemned, or such a remark, in a different setting, followed by proper objection and curative instruction, would not require reversal. Resolution necessarily should involve a case-by-case analysis considering all the circumstances.

The idea of preservation of favored races, or implications of superior or inferior races should be rejected by this court as impermissible in a court trial. There is only one race — the human race — and this places all on notice that no one is above or below the law which provides equal protection for all, regardless of sex, race, creed, religion, ancestry or national origin.

I am authorized to state that Judge Benham joins in this special concurrence.