In South Carolina, the Confederate flag that so many see as the worst symbol of racism and hate in American history, and apparently some still see as heritage, is never too far away.
It flew above and next to South Carolina’s Statehouse in Columbia for 54 years. That Rebel flag finally came down last year – to the applause of millions. It took the slaughter of nine black people in a Charleston church to prompt state leaders to move the flag off Statehouse grounds.
But the flag came back this week – to court in York County. It came on a shirt, worn by a woman who was a prospective juror.
She walked into the Moss Justice Center in York, after she was summoned for jury service, wearing a T-shirt with not just the Confederate flag on the front, but surrounded by a common saying among heritage not hate types: “If this flag offends you, you need a history lesson.”
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The flag – offensive to so many millions, a reminder of racial hatred and a war waged to fight slavery, Jim Crow and segregation, co-opted by the KKK and other hate groups – is not illegal.
And the Confederate flag is apparently not grounds for juror disqualification – even if it shouts from a woman’s chest.
When a judge was qualifying jurors for the week of court, many noticed – which likely was the reason she wore it. The woman was asked about the shirt by the judge but said she could be fair and impartial, court officials said.
Later, in a courtroom, a prosecutor and a defense lawyer readied for a drug trial. The lawyer, Monier Abusaft, a 16th Circuit assistant public defender, saw that the woman was part of the potential jury panel for the case.
Abusaft, who said he was the only person of color among the trial participants, including his client, made a motion that the woman be struck from possibly serving “for cause.” Abusaft said his reasoning, his “cause,” was even though the woman said she could be fair and impartial, the shirt with the flag, and the saying on it, should disqualify her.
“To me, it was problematic – not just the flag, but the message,” Abusaft said afterward.
As the lawyer for the defendant, Abusaft said that “I speak for my client” and he was concerned that the shirt and its message were potentially confrontational. The flag shirt and slogan meant to send a message to people, Abusaft said.
But the judge ruled that the woman had stated that she could be fair and impartial, and did not excuse the woman from the potential jury panel.
Abusaft then chose to use one of his juror “strikes” – both sides have the right to dismiss a certain number of potential jurors when picking a jury. The woman was dismissed from the case and never was seated as a juror.
The case ended with a plea deal – no jury needed.
The prosecutor on the case, Matthew Hogge, said he, too, finds the flag offensive. Hogge said he was prepared to use a juror “strike” against the woman in the flag shirt if he needed to.
Kenneth Gaines, a University of South Carolina law school professor and expert on criminal law and rules, said the Confederate flag on a shirt does not by itself disqualify someone from jury service, as a “for cause” strike is a ruling toward someone who admits they can’t be fair and impartial, or is found not to be able to be fair and impartial.
The judge questioned the woman, and she claimed she could be fair and impartial, Gaines said. So the defense lawyer had to use one of his strikes, Gaines said.
“You can use a strike for anything except for race or gender,” Gaines said.
The Confederate flag’s role in an alleged white supremacist’s mass killing of nine blacks last year in Charleston soon will be the face of South Carolina to the world again. The trials for the alleged killer who hoped to start a race war to start loom. The Confederate flag, and what it means, will be part of those courtrooms for months. That trial will be all about the hate of a man who used that flag as an emblem for his alleged mass murder of those who are black.
No one knows if any of those potential jurors will arrive sporting a Confederate flag shirt with the words, “If this flag offends you, you need a history lesson.’ Or what the court will do if it happens.
Why the woman wore a Confederate flag T-shirt with that slogan on it to the Moss Justice Center courthouse in York County for jury duty this week is unclear. Maybe, said Gaines, the USC expert, she hoped the flag would have disqualified her from even being considered. Maybe she hoped the court would have sent her home.
“It didn’t work,” Gaines said.