19 2005] REOPENING THE EMMETT TILL CASE 2119 This outlandish strategy laid the foundation for Milam and Bryant’s defense: that the corpse in question was not Till. The prosecution presented two witnesses who testified that they had seen Milam and/or Bryant with Till on August 28. Willie Reed testified that he had seen Bryant, Milam, and one other white man with Till, and had heard the sounds of a beating coming from Milam’s barn. 93 It was rare for a black man at that time to testify against whites. After testifying, Reed quietly slipped out of town to Chicago, where he was hospitalized for a nervous breakdown. 9 4 Moses Wright, Till’s uncle, endured death threats for his role as the key prosecution witness. During his testimony, Wright literally stood up in open court to point his finger in identification of Milam and Bryant as the men who had kidnapped Till from his house. He too had to be smuggled out of the state after his testimony. 95 The defense’s summation consisted of openly inflammatory supremacist rhetoric. The lead defense attorney warned that if the jury did not free Milam and Bryant, their “ancestors would turn over in their graves,” and exhorted, “[e]very last Anglo-Saxon one of you… has the courage to free these men.” 96 After sixty-seven minutes of deliberations, the jury acquitted the men on September One juror later commented that the jury had waited that long to “make it look good,” and had paused to drink soda pop before returning with its verdict. 98 The jury foreman explained that the State 93. Id.; see also James L. Hicks, Youth Puts Milam in Till Death Barn, Wash. Afro.-Am., Sept. 24, 1955, in The Lynching of Emmett Till, supra note 1, at 87-88; Ralph Hutto, Mother, “Surprise Witness” Give Dramatic Testimony: Mamie Bradley Says Corpse Was That of Her Slain Son (pt.1), Jackson State Times, Sept. 22, 1955, in The Lynching of Emmett Till, supra note 1, at Transcript, supra note Id. 96. Id.; see also Sam Johnson, Jury Hears Defense and Prosecution Arguments As Testimony Ends in Kidnap-Slaying Case, Greenwood Commonwealth (Miss.), Sept. 23, 1955, in The Lynching of Emmett Till, supra note 1, at 100. The defense attomey summation went as follows: There are people in the United States who want to destroy the way of life of Southern people. There are people… who will go as far as necessary to commit any crime known to man to widen the gap between the white and colored people of the United States. They would not be above’putting a rotting, stinking body in the river in the hope that it would be identified as Emmett Till. Id. (quotation marks omitted). 97. Transcript, supra note Id.

20 2120 FORDHAM LAWREVIEW [Vol. 73 had failed to prove that the murder victim found was indeed Emmett Till. 99 Contemporaneous news footage shows Milam and Bryant reacting to the verdict by lighting up cigars, kissing their wives, and grinning for news photographers.”” 0 There was a celebratory atmosphere at the courthouse. Mamie Till recalled: “You could hear guns firing. I mean it was almost like a 4th of July celebration, or it was almost as if the White Sox had won the pennant in the city of Chicago.”” Sheriff H. C. Strider told reporters, “I hope the Chicago niggers and the NAACP are satisfied.””l0n Although Milam and Bryant still faced kidnapping charges, in November the grand jury heard testimony from both Wright and Reed and failed to indict.” 0 ‘ 4. The Immediate Aftermath: “Perhaps, an Opening of Consciousness”?104 In the United States aifd d8luroad,’the triai and acquittal garnered much scrutiny and controversy. Defeliders of the verdict, particularly in the white and colored southern press, described the trial process as fair and the evidence as weak.”‘ 5 Leading Mississippi newspapers strongly criticized the NAACP and its “sympathizers” for their presence in Sumner, and blamed them for the worldwide condemnation of Mississippians and their justice system.’ 06 On the 99. Id. Whitaker’s thesis asserts that the jurors, when polled, all said that they believed that Milam and Bryant had murdered Till; only one doubted the identity of the corpse retrieved from the Tallahatchie River. Whitaker, supra note 3, at James L. Kilgallen, Defendants Receive Handshakes, Kisses, Memphis Com. Appeal, Sept. 24,1955, in The Lynching of Emmett Till, supra note 1, at Transcript, supra riote Id See Crowe, supra note 3, at 114; Murray Kempton, 2 Face Trial As “Whistle” Kidnappers-Due to Post Bond and Go Home, N.Y. Post, Sept. 25, 1955, in The Lynching of Emmett Till, supra note 1, at The quote is the headline of a post-verdict article, dated September 27, 1955, in the French daily newspaper, Le Monde: The Sumner Trial Marks, Perhaps, an Opening of Consciousness. See Timeline, , supra note See, e.g., Acquittal, Delta Democrat-Times, Sept. 23, 1955, in The Lynching of Emmett Till, supra note 1, at 115; Fair Trial Was Credit to Mississippi, Greenwood Morning Star (Miss.), Sept. 23, 1955, in The Lynching of Emmett Till, supra note 1, at ; The Verdict at Sumner, Jackson Daily News, Sept. 25, 1955, in The Lynching of Emmett Till, supra note 1, at In Fair Trial Was Credit to Mississippi, the editors of the Greenwood Morning Star of September 23, 1955 defended the verdict: This was one of those cases where the radicals and NAACP sympathizers were hoping that Miss. would give them occasion to lambaste our state because of its being a segregation stronghold. They were alert to every possibility and played every angle. Sometimes they wore your patience thin, but Miss. people rose to the occasion and proved to the world that this is a place where justice in the courts is given to all races, religions, and classes. Fair Trial Was Credit to Mississippi, supra note 105 at 115. Other editors acknowledged the acquittal as a failure, but blamed the NAACP for the state’s failure

21 2005] REOPENING THE EMMETT TILL CASE 2121 other hand, the acquittal galvanized those who viewed it as both a failure of the American legal system and a pivotal event in race relations. The African-American press, northern press organizations, and many other groups denounced the verdict and called for nationwide protests and boycotts.y07 International criticism of the verdict was ample and harsh. As legal historian Mary Dudziak notes, European public opinion was acutely critical of United States domestic race relations in the Cold War era; the European press pointed out the dissonance between U.S. proclamations of liberty in the international sphere and its own shameful record of racial injustice at home.’ 08 Headlines characterized the verdict as: the “Judicial Scandal” (Le Peuple); the “Scandalous Acquittal in Sumner” (L’Aurore); the “Shame of the Sumner Jury” (Le Figaro); and the “Mockery of Justice in Mississippi” (L’Humanite).’0 In an October 1955 memorandum summarizing European reaction, the Paris Office of the American Jewish Committee reported: “Europe’s condemnation came from all sections of public opinion, all political directions, and was expressed immediately and spontaneously… These Protestations were expressed in hundreds of newspaper editorials, statements by public to secure a conviction; the Delta Democrat-Times of September 23, 1955 observed: For without their blanket accusations of decent people, their studied needling of the citizens who had to decide a matter of local justice, and their indifference to truth in favor of propaganda-making, those local officials, put on the defensive from the outset, might otherwise have made an honest effort to do more than what resulted in an effective cover-up. Acquittal, supra note 105, at See Editorial, Double Murder in Mississippi, Christian Century, Oct. 5, 1955, in The Lynching of Emmett Till, supra note 1, at ; Chester Himes, Editorial, Letter to the Editor, N.Y. Post, Sept. 25, 1955, in The Lynching of Emmett Till, supra note 1, at 117; Langston Hughes, Editorial, slcpra note 1, at ; Roi Ottley, Editorial, Southern Style, Chi. Defender, Oct. 8, 1955, in The Lynching of Emmett Till, supra note 1, at ; Eleanor Roosevelt, Editorial, I Think the Till Jury Will Have Uneasy Conscience, Memphis Press-Scimitar, Oct. 11, 1955, in The Lynching of Emmett Till, supra note 1, at ; Editorial, The Shame of Our Nation, Daily Worker, Sept. 26, 1955, in The Lynching of Emmett Till, supra note 1, at ; Editorial, The State of Mississippi Still Carries the Burden, Atlanta Const., Sept. 26, 1955, in The Lynching of Emmett Till, supra note 1, at ; Editorial, The Till Case Verdict, Jackson Advoc., Oct. 1, 1955, in The Lynching of Emmett Till, supra note 1, at ; Dan Wakefield, Justice in Sumner, The Nation, Oct. 1, 1955, in The Lynching of Emmett Till, supra note 1, at ; Editorial, What You Can Do About the Disgrace in Sumner, Chi. Defender, in The Lynching of Emmett Till, supra note 1, at ; Press Release, Congressman Adam Clayton Powell, Jr., Congressman Powell Speaks at Labor Rally Held at Seventh Avenue and 37th Street (Oct. 11, 1955), in The Lynching of Emmett Till, supra note 1, at ; see also The Lynching of Emmett Till, supra note 1, at (quoting letters to the editors of the Washington Afro-American, Cleveland Call and Post, Memphis Commercial Appeal, and the Atlanta Constitution in.response to the Till case) Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (2000) Timeline, , supra note 71.

22 2122 FORDHAM LAW REVIEW [Vol. 73 leaders in every country of Western Europe, and by men in the street.””‘ 1 In January 1956, Look magazine, a top-selling weekly periodical, published The Shocking Story of Approved Killing in Mississippi, Milam and Bryant’s first-person account of how they had murdered Emmett Till.” 1 ‘ In exchange for $4000, Milam and Bryant had consented to an interview with journalist William Bradford Huie.1’2 Huie recalled: I met Milam and Bryant. We had this strange situation. We’re meeting in the library of this law firm. Milam and Bryant are sitting on one side of the table, [lawyer] John Whitten and I sitting on the other side. I’m not doing the questioning. Their own lawyer is doing the questioning. And he’s never heard their story. Not once. He becomes as interested in the story as I am. I said, “Now, I’m going to take notes and then during the day I’m going to do two things. I’m going to be roughing out this story, and I’m also going where you say you went, and I’m going to find evidence.””1 3 The admission and accompanying story by Huie are startling historical artifacts in several respects. Most important, of course, is that the admission exists at all. Lured by money and publicity, Milam and Bryant provided minute details of their thoughts, motivations, and actions during the kidnapping, killing, and disposal of the body. They offer extended recreations of their confrontations with Moses Wright, Moses Wright’s wife Elizabeth, and especially Emmett Till.”‘ 4 Whether their statements are entirely true or embellished with selfserving braggadocio, they are shocking in their hubris and lurid detail. The juxtaposition of their remorseless tale with their acquittal only months before was a mockery of the justice system, a confirmation of blacks’ worst fears about white supremacist lawlessness. A second notable aspect of the story is journalist Huie’s presentation. In contrast to the details of the killing, it is odd and unsettling to read Huie’s descriptions of the Bryants’ small-town, plain “American” values. He describes their social life as “visits to their families, to the Baptist church and, whenever they can borrow a 110. See The American Jewish Committee, Memo on the European Action to the Till Case (Oct. 7, 1955), in The Lynching of Emmett Till, supra note 1, at 138. In a speech at a labor rally in October 1955, U.S. Congressman Adam Clayton Powell, Jr., commented: “I can objectively report that the lynch murder of Emmett Till in Mississippi was, in the eyes of Europe, a lynching of the Statue of Liberty. No single incident has caused as much damage to the prestige of the United States on foreign shores as what has happened in Mississippi.” Press Release, supra note 107, at Timeline, , supra note 71; see also Huie, supra note 4, at Huie, supra note 4, at American Experience, The Murder of Emmett Till, Special Features, Killers’ Confession, at (last visited Feb. 14,2005) (materials relating to the confession in Look) See Huie, supra note 1, at

23 2005] REOPENING THE EMMETT TILL CASE 2123 car, to a drive-in, with the kids sleeping in the back seat.””‘ They are “poor: no car, no T.V… They sell ‘snuff-and-fatback’ to Negro field hands on credit; and they earn little because, for one reason, the government has begun giving the Negroes food they formerly bought.”‘ 16 A southern writer, Huie conveys an air of eerie inevitability in his descriptions of rural white Mississippi and the rigid taboos of race and gender threatened by Emmett Till. In describing the Milam/Bryant family, he notes: This is a lusty and devoted clan. They work, fight, vote and play as a family… For years, they have operated a chain of cotton-field stores, as well as trucks and mechanical cotton pickers. In relation to the Negroes, they are somewhat like white traders in portions of Africa today; and they are determined to resist the revolt of colored men against white rule. 17 Huie’s combination of blunt expose and Southern parable only underscores the reader’s sense that Milam and Bryant’s status of impunity was far from aberrational in Southern white-black relations. Huie concludes that “[t]he majority-by no means all, but the majority-of the white people in Mississippi 1) either approve Big Milam’s action or else 2) they don’t disapprove enough to risk giving their ‘enemnies’ the satisfaction of a conviction.”11 8 But ultimately, what distinguished this case from countless other unpunished lynchings was the convergence of worldwide exposure and a ripening civil rights movement. C. Emmett Till and the Growth of the Civil Rights Movement Many scholars of the civil rights movement of the late 1950s view the Emmett Till case as a crucial moment in the struggle for black freedom.”‘ 9 The murder of a fourteen year old boy for a single cavalier act was hardly an isolated event; it occurred in a context that bridged the history of Southern lynching with the emerging civil rights revolution. Fifteen months before Till’s murder, the U.S. Supreme Court had decided Brown v. Board of Education,’ 20 which was met with staunch opposition from southern segregationists.’ 2 1 Mississippi 115. Id. at Id Id. at Id. at See, e.g., Taylor Branch, Parting the Waters: America in the King Years, , at 209 (1988); Aldon D. Morris, The Origins of the Civil Rights Movement: Black Communities Organizing for Change 29-30, 147 (1984); Harvard Sitkoff, The Struggle for Black Equality, , at 44 (1993); Williams, supra note 3, at U.S. 483 (1954) Constance Baker Motley, a member of the Brown legal team, notes: In response to Brown in 1954, the Southern states had resurrected the basic political themes that guided the South during the Civil War-that is, nullification and interposition, which affirmed that a state had the

24 2124 FORDHAM LAW REVIEW [Vol. 73 in particular emerged as a cauldron of race hatred; two months after the Brown decision, Mississippi supremacists founded the Citizens’ Council to “preserve” the white race from the “mongrelization” of desegregation.” 22 In May 1955, two African-American men active in voter registration drives were shot and killed in two separate incidents in Mississippi; no one was arrested in connection with either murder.’ 23 Even though Emmett Till’s actions in Bryant’s Grocery were hardly political in an overt sense, Milam and Bryant saw them as the integrationist, rabble-rousing “poison” of an impudent northerner. The fact that Till was a visitor from Chicago only underscored their anger; his actions became “political” the moment he stepped off the train in Money, Mississippi. It mattered little to Milam and Bryant that he was a fourteen year old boy trying to buy bubble gum; to them, he was a black predator who threatened their way of life.12a The year 1955 marked a turning point for the Southern way of life for several important and interlocking reasons. As the first post- Brown year, it fueled not only segregationist backlash, but also further integrationist resistance to Jim Crow laws and institutions. As the year of Till’s murder and his killers’ acquittal, it awakened in many Americans a sense that the whole world had seen not only the death of Emmett Till, but also the brutality of lynching and the disintegration of Jim Crow’s legal and political legitimacy. As the year ended, the unraveling continued. On December 5, 1955, one hundred days after Till’s murder, Rosa Parks refused to give up her seat on a city bus in Montgomery, Alabama; in the ensuing days, the Montgomery bus boycott began. 125 constitutional right to nullify the effectiveness of any federal law or federal court decision with which it disagreed and to interpose its sovereignty between that decision or law and the federal government… In some state capitals in the Old South, the Confederate flag was still flying or had been raised anew. Constance Baker Motley, Equal Justice Under Law: An Autobiography (1998) See Timeline, , supra note Timeline, , supra note 71. Both men had been active in voter registration drives. The Reverend George Lee, a NAACP field worker in Belzoni, Mississippi, was shot at point blank range in his car after trying to vote. Lamar Smith was shot to death in broad daylight in front of the county courthouse. Id For an analysis of the Till case and its influence on contemporary attitudes about interracial relationships, see Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption (2003) See Jo Ann Gibson Robinson, The Montgomery Bus Boycott and the Women Who Started It (1987); see also Randall Kennedy, Martin Luther King’s Constitution: A Legal History of the Montgomery Bus Boycott, 98 Yale L.J. 999 (1989).

25 2005] REOPENING THE EMMETT TILL CASE 2125 II. LESSONS AND CHALLENGES FOR CRITICAL RACE PRACTICE Among the many intriguing questions that arise from the reopenings of the Emmett Till murder investigation and other civil rights era cases are considerations of long-term meaning and suitability of remedy. Without a doubt, these were and are serious miscarriages of justice that demand reflection, remembrance, and reexamination. The horrors of these crimes linger and reverberate many decades later and through many communities, suggesting that admonitions to “move on” and “leave the past behind” are not only inadequate and unrealistic, but insulting to human dignity as well. As one famous son of the South wrote, “[t]he past is never dead. It’s not even past.” 1 26 These considerations notwithstanding, it is far from clear that individual reopenings and new prosecutions can sufficiently define or remedy the grievous harms inflicted by these events. New trials for the murder of Emmett Till might or might not result in the cleansing moment of conviction and incarceration; with either outcome, much harm remains not only unremedied, but perhaps irremediable. Of course, this is true with respect to murder prosecutions generally, however, the symbolic long-term significance of the Till case renders it categorically different in momentum and in meaning. If reopenings and new prosecutions fail to provide a sense of closure and justice, the fault may lie not in the outcome of new proceedings, but in the nature of conventional criminal proceedings and sanctions themselves. In this regard, Martha Minow, among others, has called for more study of systemic violence, as well as for a broader range of political and legal responses to it.’ 2 ” The emerging field of transitional justice draws upon the experiences of countries that have endured mass violence; it focuses attention not only on atomistic actors or events, but also on patterns of violence and their contextual meaning and effects.’ 28 Critical race literature also urges a broader contextual approach to conceptions of harm and remedy in the American legal system. In legal settings ranging from reparations’ 2 9 to affirmative action’ 3 0 to 126. William Faulkner, Requiem for a Nun 92 (1951). Faulkner published an open letter in newspapers throughout the nation during the trial of Milam and Bryant, calling for justice: “Because if we in America have reached that point in our desperate culture when we must murder children, no matter for what reason or what color, we don’t deserve to survive, and probably won’t.” The Lynching of Emmett Till, supra note 1, at 43 (quotation marks omitted) See generally Breaking the Cycles of Hatred: Memory, Law, and Repair, supra note See Impunity and Human Rights in International Law and Practice, supra note See Alfred L. Brophy, Reconstructing the Dreamland: The Tulsa Riot of 1921: Race, Reparations, and Reconciliation (2002); Charles J. Ogletree, Jr., Repairing the Past: New Efforts in Reparations Debate in America, 38 Harv. C.R.-C.L.

26 2126 FORDHAM LAW REVIEW [Vol. 73 wrongful convictions,” 3 ‘ many critical race writings address both the philosophical and pragmatic underpinnings of the concept of redress for racial injustice. These writings are part of a larger body of social justice scholarship that aims to generate innovative legal theories and strategies for the next generation of lawyers.’ 3 2 A noteworthy characteristic of both critical race literature and the social justice scholarship that it is a part of is a concerted effort to unite legal theory with practice: to create a dynamic where theoreticians and practitioners learn from and influence each other in addressing specific problems of injustice. In this part, I address two key areas where the Till reopening (as it has unfolded thus far) can both influence and be affected by critical race practice: questions of harm, and questions of remedy. Each of these areas presents an example of the ways in which the concerns underlying reopenings dovetail with core themes of critical race praxis. A. Questions of Harm: Defining the Scope of Injustice A first lesson from the Till reopening is the importance of nonlawyers, non-legal appr6aches, and non-legal sources in defining the scope of harms suffered. Five decades of organizing, investigation, research, and artistic expression preceded the legal decision to reopen. Throughout this process, non-lawyers were the agents of inquiry, protest, and change. Certainly, some lawyers were instrumental in the reopening-for example, Kenneth Thompson, a former prosecutor who supported Keith Beauchamp’s efforts.” 3 But before the L. Rev. 279 (2003); Alfreda Robinson, Corporate Social Responsibility and African American Reparations: Jubilee, 55 Rutgers L. Rev. 309 (2003); Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?, 40 B.C. L. Rev. 429 (1998); Eric K. Yamamoto et al., American Racial Justice on Trial-Again: African American Reparations, Human Rights, and the War on Terror, 101 Mich. L. Rev (2003); Rhonda V. Magee, Note, The Master’s Tools, from the Bottom Up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863 (1993) Joel Dreyfuss & Charles Lawrence III, The Bakke Case: The Politics of Inequality (1979); Charles R. Lawrence III & Mari J. Matsuda, We Won’t Go Back: Making the Case for Affirmative Action (1997); William C. Kidder. Affirmative Action in Higher Education: Recent Developments in Litigation, Admissions and Diversity Research, 12 Berkeley La Raza L.J. 173 (2001); Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 85 Cal. L. Rev (1997) See, e.g., Eric K. Yamamoto, Korematsu Revisited- Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 Santa Clara L. Rev. 1 (1986) See generally Cases and Materials on Social. Justice: Professionals, Communities, and Law (Martha R. Mahoney et al. eds., 2003) (groundbreaking casebook of cases and materials about social justice lawyering) Press Release, Senator Charles E. Schumer, Schumer and Rangel Launch New Campaign to Force US Justice Department to Reopen Investigation into 1955 Murder of Emmett Till (Apr. 13, 2004), available at

27 2005] REOPENING THE EMMETT TILL CASE 2127 movement to reopen the case reached the venues of the district attorney’s office, Congress, and the U.S. Department of Justice, it gained momentum in homes, community halls, churches, and screening rooms. The primary arena in which Till’s story was preserved was not the courtroom, but collective memory. These differences greatly affect the way in which questions of harm have been framed in our historical memory of what happened to Emmett Till. The scope of injustice is now defined not by the parameters of the original legal proceedings, but by what historical memory tells us happened in 1955 and in the five decades since then. In a sense, the Justice Department tacitly acknowledged this more capacious definition when it announced that “we owe it to ourselves” as well as to Emmett Till to address a case that stands “at the crossroads of the modern American civil rights movement.”‘ 3 4 Similarly, many critical race theorists urge that lawyers consider a broader context in defining the nature of injustice. This tenet is described in the literature in several ways. Pivotal critical race writings underscore the importance of “looking to the bottom” 135 and of “counter-storytelling” to “help us understand what life is like for others, and invite the reader into a new and unfamiliar world.”‘1 3 6 More recent scholarship displays a continuing emphasis on the need for critical race practitioners to listen to previously unheard voices and communities in formulating strategies for political empowerment and racial justice.’ 37 Sharon K. Hom and Eric K. Yamamoto write: Who frames injustice in the law’s eye and the public’s mind? How and with what societal effects?… [F]raming injustice is about social memory. In an era characterized by a conservative “retreat from justice,” many progressive lawyers and activists seeking legal justice define injustice narrowly. They focus on legal doctrine and its definition of html Acosta Briefing, supra note See generally Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, in Critical Race Theory: The Key Writings that Formed the Movement, supra note 33, at Critical Race Theory: An Introduction, supra note 33, at 41. Also, see Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values 6 (1997), in which Davis uses the novel structure of “stories” to develop a theory of family rights. Davis observes: “All legal doctrines are stories, structured upon formal but ambiguous texts and nourished by history and culture. They owe their existence to collective recognition which comes as a result of their resonance with the culture and traditions of the people who announce and live by their terms.” Id See generally Lani Guinier & Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (2002); Ian F. Haney Lopez, Racism on Trial: The Chicano Fight for Justice (2003).

28 2128 FORDHAM LAW-REVIEW [Vol. 73 a civil rights claim… That framing, while legally apt, narrows public imagination and debate. In its search for “relevant facts” and crisp argument, it relegates history and community agitation to back-up roles in civil rights struggles. 138 Hom and Yamamoto urge practitioners to consider broader theories of harm, to “expand the law’s narrow framing of injustice and focus on historical facts to more fully portray what happened and why it was wrong.” 139 These prescriptions suitably describe a way to frame the many injustices of the Till case and its aftermath; a broader definition of the scope of harms is very helpful in understanding the impact of this case on the landscape of the American civil rights movement. However, complexities arise when applying this broader framework to the question of whether reopening would sufficiently address the harms. Consider the reopening at three levels. First, consider the reopening in its most elemental legal function: a chance to address the murder of Till. If the reopening results in one or more prosecutions, one must keep in mind that in all likelihood these prosecutions would be, at most, the trial of a few minor “accomplices” (if sufficient evidence shows that Milam and Bryant did not act alone). According to the research of documentarian Keith Beauchamp and others, these individuals could include whites and blacks; these “accomplices” may have been handymen in the employ of Milamr. 0 Without intending to diminish or excuse in any way the culpability of accomplices, one might still ask: would securing convictions of these individuals effectively address the harm of Till’s murder?’ 4 ‘ Milam and Bryant, the acknowledged culprits, have been dead for decades. They went to their graves without convictions and without any public accountability for the enormity of their actions.1 42 That fundamental injustice can never be corrected. Next, consider the reopening through the lens of a second level of harm, again broadly defined: the delegitimation of the legal system fostered by the miscarriage of justice of the original trial. Could a 138. Sharon K. Hom & Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA L. Rev. 1747, (2000) (citations omitted) Id. at See Lichtblau & Jacobs, supra note 2; Van Biema, supra note 11; David T. Beito & Linda Royster Beito, Why It’s Unlikely the Emmett Till Murder Mystery Will Ever Be Solved, History News Network, at (Apr. 26, 2004). Thus far, it is not entirely clear from the public record which individuals would be defendants if new prosecutions ensue, nor is it clear whether Carolyn Bryant is among those under investigation For a discussion of constitutional and other legal limitations on the prosecution of long-dormant murder charges, see Russell, supra note 32, at Hendrickson, supra note 3, at 11. Hendrickson notes that Bryant, when interviewed by a journalist in the mid-1980s, attempted to deny that he had murdered Till and commented: “You mean do I wish I might wouldn’t have done it? I’m just sorry that it happened.” Id.

29 2005] REOPENING THE EMMETT TILL CASE 2129 reopening ameliorate this harm? Can the successful revival of longdormant claims correct the warping effect on the legal system of the original legal injustices? Should the reopening of the Till case be viewed in this way? At this point, my answer is no. One reopening, even amid a spate of reopenings, does not signify structural transformation. Fortunately, there are an increasing number of examples of concrete positive legal change through reopenings: for example, reprosecutions and convictions of the murderers of Medgar Evers, the Birmingham Church bombing victims, and others;” 43 the reversal of numerous wrongful convictions;’44 the success of the coram nobis litigation on behalf of Fred Korematsu;’ 4 5 and the grant of a presidential pardon for one of the Port Chicago prisoners.’ 4 6 These efforts illustrate both the deep flaws in our legal system and its capacity to withstand challenges. However, it would be misleading to suggest that these exceptional, relatively high-profile examples of self-correction prove the legitimacy of the system itself. I Critical race practice offers several analytical insights with regard to this second level of harm. In response to arguments that individual case reopenings provide an opportunity to alter structures of legal injustice, the literature sounds a few notes of caution. In its critiques of liberalism, critical race literature challenges mainstream beliefs about the legal system-namely, that it is premised on values of neutrality, colorblindness, and incremental social change.’ 4 7 Critical race literature argues instead that these supposed “values” are in fact myths that mask deep truths about the persistence of systemic racism and the majoritarian tendency to accept change only when it converges with majoritarian interests (interest convergence).’ 4 8 These 143. See Russell, supra note 32, at See Barry Scheck et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (2000); Santa Clara Univ. Sch. of Law, Northern Innocence Project at Santa Clara University, at (last visited Feb. 14, 2005) See Yamamoto, supra note 131; see also Race, Rights and Reparation: Law and the Japanese American Intermnent (Eric K. Yamamoto et al. eds., 2001) The Port Chicago incident stemmed from a munitions explosion at the Port Chicago naval base in northern California in After the explosion killed several hundred sailors (many of them African-Americans) in the worst home-front military disaster of World War II, a group of remaining sailors refused to continue working in the unsafe conditions of the base. They were court-martialed. A movement to reopen an investigation into the incident resulted in ongoing efforts to secure pardons for the few remaining living sailors. See Robert L. Allen, The Port Chicago Mutiny (Amistad Press, Inc. 1993) (1989). In December 1999, President Bill Clinton issued a pardon for one of the surviving men. Richard Goldstein, Freddie Meeks, 83, Ex-Sailor Who Was Pardoned, Dies, N.Y. Times, June 30,2003, at A See generally Critical Race Theory: An Introduction, supra note See, e.g., Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (1992); Derrick A. Bell, Jr., Brown v. Board of Education and the Interest- Convergence Dilemma, 93 Harv. L. Rev. 518 (1980); Derrick A. Bell, Racial Realism,

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We are Internet Investors, Developers, and Incubators- operating a content network of several thousand sites while federating 20+ eCommerce and SaaS startups. With our proprietary “inverted incubation” model, we leverage a portfolio of $15M+ in valued domains to impact online trends, traffic, and transactions. We use robotic process automation, machine learning, and other proprietary approaches to power our content network. Discover our work!