Our title is a paraphrase of a very familiar refrain written by Ralph Waldo Emerson in 1837 in a poem Concord Hymn, commemorating the first round of fire in the American Revolution in Concord, Mass. The term has been applied to subsequent events including the assassination of Duke Ferdinand in 1914 as well as Bobby Thomson’s iconic walkoff homer at the New York Polo Grounds in 1951 to win the National League pennant for the New York Giants against the Brooklyn Dodgers.
The laws of probability dictate that there have certainly been many other “shots” of substantial significance that have gone unheard. There may have been one in Louisa County, Virginia, just several days ago that could spark a revolution in the Commonwealth’s legal universe. On September 10, a Louisa circuit judge ruled on a motion by attorneys representing a defendant in a first degree murder trial that a portrait of Robert E. Lee and a plaque by the United Daughters of the Confederacy are to be removed from their prominent place on the courtroom’s walls.
“While Robert E. Lee’s place in history has been controversial, undoubtedly, for some time, the tenor of the debate has changed remarkably in the 10 months that have passed since the court last addressed the issue. The court is compelled to conclude that the level of controversy surrounding the image of Robert E. Lee is sufficiently intense that it is foreseeable that it may impair the fair administration of justice.”
The new ruling reversed an earlier one in November 2019 that permitted the items to remain, citing, among other things, the stature of Lee in the Old Dominion with a state holiday in his honor. Reversing his ruling, the judge stated that, “while Robert E. Lee’s place in history has been controversial, undoubtedly, for some time, the tenor of the debate has changed remarkably in the 10 months that have passed since the court last addressed the issue. The court is compelled to conclude that the level of controversy surrounding the image of Robert E. Lee is sufficiently intense that it is foreseeable that it may impair the fair administration of justice.”
Louisa County’s population is about 37,600, about 80% white, and almost 16% African American. The front of the courthouse boasts a statue of a Confederate soldier dedicated in 1905 at the same time as the courthouse was erected. A century and a decade later, in June 2020, the county Board of Supervisors established a citizen committee to determine the future fate of the statue. It seems clear that the judicial decision on the Lee portrait will have an effect upon the deliberations of the Board committee.
Language from the ruling strongly indicted the imagery and effect of Confederate symbols on the administration of justice:
Given the significantly prevalent image of Robert E. Lee as a figure of racial hatred and prejudice, the Court is compelled to conclude that such image is unwelcoming to many of the African Americans, and others, who are compelled to appear in our courtroom as litigants, witnesses, jurors, attorneys and judges,
The paradox presents itself that visitors or participants to the Louisa courthouse will continue to be exposed to the statute while Robert E. Lee is now absent from the courtroom. Nonetheless, the judge’s decision is a significant victory, perhaps remarkable, for defense counsel in all proceedings throughout the Commonwealth. In particular in the Louisa matter, the trial proceeding will be non-jury, i.e., a bench trial, before the judge who ruled on the portrait removal. The principle of the ruling is likely to be employed and cited in other jurisdictions for its precedential value.
Whether a criminal or civil contest is at stake, counsel may argue, as in the Louisa case, that a party is less likely to have a fair trial in a courtroom in which the judge, jury, or witnesses are exposed to “images that are unwelcoming to many of the African-Americans or others who are compelled to appear.…” The inclusion or removal of a plaque installed by the United Daughters of the Confederacy may lead attorneys to question jurors in voir dire, preliminary examination of jurors or witnesses, about membership in Confederate or other cultural heritage organizations that may be an influence upon their views. Attorneys are obligated by training and ethics to exert zealous representation on behalf of a client, which requires challenging the opposition to meet its burden of proof–beyond a reasonable doubt in a criminal proceeding.
The first echo of the Louisa “shot” has not yet had time to be heard very far across the state. However, if nothing has been learned from history, recent protest events instruct that the demand for change can accelerate rapidly. Wars such as the American Revolution and World War I have commenced very quickly upon the firing of a shot, while Bobby Thomson’s homer was only a momentary thrill dulled by the Giants’ loss to the Dodgers in the World Series. History may be unpredictable and even arbitrary, but it has a tendency to be consistent in the evolution of human rights. Time will tell the tale of the effects of the Louisa decision.