September 30, 2022
The display of the “Thin Blue Line” American flag on bailiffs’ COVID-19 facemasks in a Kent County courtroom is an inherently prejudicial practice that violates a defendant’s right to an impartial jury in a criminal trial, according to a ruling from the Court of Appeals of Maryland in Smith v. State of Maryland. The August decision relied heavily on an amicus brief authored by PJC 2021-2022 Murnaghan Fellow Michael Abrams, which argued that symbols associated with race and racism can prime implicit bias, provided background on the “Thin Blue Line” concept and the flag’s rise to prominence as a symbol for white supremacy, and shared local history of racism on the Eastern Shore and in Kent County as well as contemporary local anti-racism activism by community groups. The brief was joined by the ACLU of Maryland, National Legal Aid & Defender Association, Baltimore Action Legal Team, Showing Up for Racial Justice Annapolis and Anne Arundel County, and Social Action Committee for Racial Justice (a prominent Eastern Shore community group).
The PJC’s brief’s argument that the flag was inherently prejudicial began by explaining how implicit bias functions. Symbols associated with race and racism can “prime” implicit racial bias, making racial stereotypes more influential in the jury’s evaluation of the evidence and judgment of the Black defendant, even if the jurors were not consciously swayed by the symbol itself.
Then the brief provided background on the “Thin Blue Line” concept and the flag’s rise to prominence as a symbol of white supremacy. With roots in the 1800s, the concept suggests that a “Thin Blue Line” of police is what protects civilization from descending into “savagery.” This depiction of the line between lawfulness and crime then mixed with the development of American policing as a means of enforcing slavery and Jim Crow segregation, as well as the creation and spread by white people of stereotypes of Black people as violent. Today the “Thin Blue Line” flag is increasingly used by white supremacists in reaction to Black Lives Matter and has shown up at events like the “Unite the Right” rally in Charlottesville, Virginia, and the January 6, 2021, insurrection at the U.S. Capitol.
Finally, the brief provided some local history of racism on the Eastern Shore and in Kent County in particular, along with contemporary local anti-racist activism by community groups, to show that racism and implicit racial bias were realistic potential influences on this jury. The Eastern Shore relied on enslaved labor, enforced “Black codes” and Jim Crow laws, inflicted a disproportionate share of lynchings in Maryland, and was among the last to comply with the Brown v. Board of Education decision to desegregate schools. One legacy of these actions is that Black residents on the Eastern Shore are more likely than white residents to be unemployed or experiencing poverty. Community organizations, like the James Taylor Justice Coalition, are working to publicize the local history of racism and address its present-day impact, including educating the community about the lynching of James Taylor in Kent County and “working to make the connection between the racial terror lynchings of the past and mass incarceration, incidents of police brutality, and discrimination of today.” The brief provided this context to show that the prevalence of racism in the region means jurors likely have a high degree of “race salience” in their unconscious mind, with deeply rooted racial tropes and stereotypes ready to be primed by stimuli for implicit bias, like the “Thin Blue Line” facemasks.
We are glad that the Court of Appeals understood the harmful impact of the display of the “Thin Blue Line” flag on jurors’ decision-making and made clear that it has no place in Maryland courtrooms. As referenced in our amicus brief, the Court acknowledged that, for many, the symbol is used to show support for law enforcement, but its impact may be quite different from that intent. And even that pro-police symbolism on a uniformed court officer in a criminal trial is prejudicial.
Thank you to PJC managing paralegal Carolina Paul for helping to get the brief produced and filed.
