Your honor, gracious ladies and gentlemen of the jury, as we turn our collective attention to last Halloween's harmless shenanigans at the Chi Omega Tau house at Scabbard University and to the young men so unfairly accused and thereby libeled and abused for their role in a harmless undergraduate prank, I would entreat you to focus on a crucial term in the prosecution's indictment. The state counsel will ask you to review in your minds the grim and shameful history of lynching in this fair region of our mighty nation, will beseech you to condemn these boys — and boys will be boys before they can grow to be men; who would have it otherwise? — for masquerading as both lynchers and willing imitation victims at a benign and whimsical college costume party.

        Lynching. We all know what it is, how lynching — often with a wound sisal rope but at times with other regrettably convenient means — is a matter of taking the decreed law into one's own hands, often by night, usually in vigilante fury and self-righteous indignation, a matter of crowd thinking and peer pressures, blood too hot to govern, words raised like smoldering brands. Certainly such extemporaneous committee behavior reflects, in part, our native inclination to self-reliance, our reluctance to shun the necessities of justice and abrogate our impulses, to rely upon the courage of the appointed few. But public-spirited and corrective as many lynch mobs may start out to be — essentially, I mean, only philosophically, for I would not condone their actual haste nor furor — such aroused citizens do on occasion go awry, miss the mark, and rash judgment as well as premature, even misdirected vengeance upon the profoundly unguilty has always lurked as a possibility. Lynching, yes, it is a crucial element in the question we convene to consider today, but we must remember that there was no lynching on October 31 of last year on Dye Street of Scabbard, Alabama, no mob, no raging adrenaline, no threat of a lynching, not even the slightest innuendo to any potential victim that he might be the target of a lynch mob. Not one soul was bruised or damaged, no one person's rights denied or encroached upon, not a single individual's pride scuffed or tainted, damaged or spoiled, and the only actual lynching to which we need turn our communal, duly-appointed and judicious attention is the one our — no, not "our," probably not "your" and certainly not "my," but perhaps only "the moment's" — assistant district attorney is attempting to propagate and enlist your complicity in. His desire to terminate the education of these five fine young men and incarcerate them, to hang the albatross of shame about their necks forever, to make an example of them as admonishment for mere make-believe and an ill-chosen seeming-resurrection of the historical tradition of the minstrel show is the only possible lynching in this case, for the D.A. wishes to deprive the lads here at this table — Trey, Bedford, Jubal, Uncas and Bobby — of their Bill-of-Rights-guaranteed license to practice freedom of speech, freedom of expression, which amounts essentially to attempting to deny them their freedom of belief. And if you, dear ladies and gentlemen, allow him to execute this travesty of justice and to place an indelible black mark on the records of these otherwise-unblemished students, to perpetrate this mockery of all the freedoms we hold sacred and dear, then you will leave that jury box, this consecrated chamber and life on our planet with no less than the invisible but indelible imprint of a lynch-rope on your own hands. A masquerade is not a murder, a jest is not an assault, a thoughtless lapse of prudence is not a campaign against another race.

       Indulge me for a moment, if you will. An anecdote, an exemplum, perhaps, certainly a reality check. It was a time when no one was afraid of hazing, the late sixties. I was pledge master of my fraternity, and on initiation night I paraded the shackled pledges out to the pole where the oversized American flag proudly waved from dawn till dusk. It was about two in the morning, however, and we were all slightly tipsy, exploring the now-taboo zone where play and pain intersect. We were by custom supposed to drop the boys off a few miles out in the country and let them make their way back to the chapter house in pairs, but my roommate Montgomery Lalonde and I had an inspiration: we wrapped their brotherhood chain around the flagpole and padlocked it with a Yale, then returned to our room for some serious sleep.

       The next morning, I picked up the ringing telephone to hear a voice identifying itself as Johnson Colvard, president of the university. He wanted me to know that the pledges had been released, our hasp hacksawed, the colors run up, but that I was due in his office in fifteen minutes, sharp.

       You see, friends, I had been so focused on fraternal fellowship and festivities that I had not listened to the news throughout the previous evening. None of us had, and we had no inkling that Mister Martin Luther King, the revered leader of his people, had been shot and killed in Memphis that evening. In the president's somber waiting room that morning, I was shocked and terrified. Suddenly, I was certain my college career and my good name were behind me and nothing but infamy ahead. I was convinced I would be branded forever with this one imprudent act performed under the influence of Mister Jack Daniels's finest and only by coincidence at the worst time imaginable.

       And he did rake us all over the coals, my friends. President Colvard paced the room as we sat in his plush guest chairs and told us in a quiet but quivering voice how foolish such an antic would have been at the best of times, but how on that particular day, it looked less foolish than defiant, snide, even vicious. He told us how the African American community would be rightly offended, how disappointed our mentors and parents would be. He said our behavior was "unbecoming" and "sorry." I tell you, I left that office feeling about the size and configuration of a toad.

       However — and here is the point, ladies and gentleman — my friends and I were not prosecuted or even suspended. President Colvard was an educator, much wiser than even the faculty firebrands who called for our dismissal, more far-sighted and shrewd. We were scolded soundly, placed on probation and required to clean the campus for the rest of the term, forbidden to conduct our formal initiation ceremony or hold our annual spring dance. We were all driven to extremes of remorse beyond description, but we were sentenced to work out our salvation with diligence in sight of the student body, to whom we issued a public apology. I believe this was a fitting end of the episode. As you see, I am now an attorney. Monty is a respected surgeon in Baton Rouge, and our Delta Upsilon Mu brothers are almost all prominent citizens, one a dean at Emory, another a major general in the United States Air Force, yet another a full-blown Pentecostal minister. We are the products, not of indulgence, but of mercy and understanding, of a wisdom far larger than any impulse to punish, and we are much the better for it. I might even venture to suppose that the world we live in is slightly the better for this act of clemency.

       Now, let us review the atmosphere that pervades this case at hand. A Friday night fraternity party, a romp to relieve the pressures of pursuing higher knowledge, and what better time to allow for release and good fellowship than Halloween, the traditional occasion for the Lord of Misrule and King of Topsy-turvy to hold court? Imagine the weeks of anticipation, the excitement of another gridiron season, another hotly-contested skirmish with the Florida Polytechnic Rattlers, perhaps with the Sugar Bowl bid hanging in the balance. Imagine the excitement of playing dress-up somewhat like children, as well as like the adults of our own grand-but-gone cotillion era. The Chi O T dining room was festooned and garlanded, the band's shimmery equipment all set up, plugged in and sound checked, kegs tapped, the snacks like crab canopies, savory sausage balls and kisch squares arrayed and wafting their seductive aromas throughout the chambers of one of the most prestigious and exclusive fraternal organizations in the South. You cannot fail to sense the excitement, to appreciate and share it, to yearn at least a little for those days of innocence when you, too, were green and eager, esurient and — truth be told — somewhat on the prowl.

       So, yes, voices would be raised and spirits would flow. I think we would all agree that the atmosphere in the Coyote House on last All Hallows Eve was conducive to high jinks and horseplay, the trick-or-treat mood, but who can believe that some evil seed, some instinct to wound and offend would dwell at the center of this understandable appetite for revelry? The district attorney will tell you that these five young men before you, the flower of our state today, the hope of our future and no older than many of their ancestors who gave their lives in defense of our great state during the War for Southern Independence, that these five youngsters chose to dress up (three in sheets with hoods and two as black cotton pickers) because they were brutal and benighted, no more aware than so many hounds how important it is that blacks and whites work together now to secure Alabama's place in this mighty nation. What sort of perverse imagination would construct — or should I say "project"? — such a motive?

       And is it not, furthermore, true that this innocent bit of humor — which I will not claim was especially tasteful or wise — occurred in a setting where no actual members of the African American community were present or even invited, even likely to be? Was it not a party closed to all but the brotherhood of Chi Omega Tau, their pledges and their dates? Had they not taken photographs of the offending scenario — which I admit might have the potential, removed from proper context, to cause some offense to a few who were not privy to the joke — had they not photographed themselves posing with toy rifles aimed at the boys in blackface and with noosed water-ski tow ropes in hand, no one might have been the wiser. And when they deposited the negatives with the Mall-Mart booth to be developed and printed, were they behaving like some secret society which had performed a skit of their mysteries or some criminal and surreptitious taunt of which they should be ashamed? The young man who processed the film, who just turned out by the unlikeliest of circumstances to be a Negro American, now I ask you, does he have the right to monitor and report the content images which run through his hands? Every customer's private memories and intimate keepsakes? He was actually over-reaching the boundaries of his position, and the strongest testimony to this fact is that the Mall-Mart has terminated his employment as the expression of their discontent with his invasion of my clients' privacy.

       So who, except for the most accidental, the most unpredictable observer of the photographs, could be called the "victim" of this crime? Though it was not performed behind locked doors, it was acted out in the temporary but no less real and legally protected homestead of my clients, the property of a national organization which has given us engineers and senators, scientists and attorneys, even I might add, an assistant district attorney or two. Though it was not flaunted nor openly advertised, the momentary event was, after the fact, spied upon — this prank, this miscalculation and abandon of the courtesy that generally characterizes the brotherhood of Chi Omega Tau — and it was only through such invasion of privacy that the mime of a hanging became any more public than some off-color joke I might whisper into my associate's ear. So where is the harm, where the foul, where the stench of evil?

       And I will grant my esteemed adversary that Scabbard University, long a bastion of conflicted and quasi-racist policies, has decided to aim for the moral high ground by playing the political correctness card, which in this case can only be a one-eyed jack, winking at the past. Yes, the university provost has locked the fraternity house and expelled the boys, acts which we expect to contest in another venue, but for the moment remember: they were operating within the grounds and community of an institution which has taken its own actions, which has its own conventions and sanctions, regulations it has invoked in meting out punishment without due process, so does not our very presence here today constitute (a word I would never deign to use lightly) a double jeopardy situation? Must these boys run the gamut of mock-justice twice before anyone will take the leap of faith to see their view? Now I ask you. . . .

       But let us further analyze the actual behavior, the specific postures and expressions which lasted only long enough for these boys to mug for the camera. In a house full of grunge music and young ladies costumed in provocative outfits — from Playboy bunnies to circus riders, Elviras and Scarlett belles — and boys adorned as imaginary ghouls — Frankensteins and vampires, mummies, aliens, Jasons and old-fashioned laundry-draped ghosts — can you not see the temptation for some to decide that Klansmen, who in reality could certainly not now be found any closer to the Scabbard campus than a Dracula, might be a fair disguise to increase the festive horror? And does not their donning the costumes of White Camellia knights and other such archaisms bear some similarity to strutting around the party in the get-up of a Barbary pirate or Comanche war chief?

       Ladies and gentlemen, can we set aside for the moment the inflammatory rhetoric, the hate accusations and mob mentality of the northern press and look at the cultural shift which allowed these boys — with the considerable confused innocence of any fraternity hullabaloo — to act without awareness that old animosities might be resurrected or sacred cows trampled? To these young men, all born around 1980, the Klansman and his ilk are no longer a fact of history so much as a facet of myth. All suburban boys, the products of high-quality preparatory schools, scions of the New South with all its hope and forward-looking policies, these five saw the lynch gang they momentarily imitated as being bogeymen, fright figures just like the cinema wolfman, taloned Freddie and Michael Myers, creatures who cannot genuinely set us to trembling in broad daylight — especially at a time when terrorism's poison gas and bombs and sniper fire are far more real and chilling. What their behavior does is not so much to resurrect the horrors of the past — "past" being as crucial to this equation as "horrors" — as certify the impotence of such outdated and deflated shibboleths. Those times are gone, a fact for which we are all thankful, and only ravenous journalists, who are both the vampires and the lynch mob of present-day America, could fail to perceive how we are far enough from an era of racial strife and open discrimination that we can now joke about it with, dare I say, something of a gallows humor, the kind of behavior which further distances and muzzles, jerks the eye teeth right out of what may have troubled us in the past. As any psychologist will tell you, we turn to humor to certify the withdrawal of danger, the emasculation of what was once a threat. It is the humor that can salve and heal.

       The history of this state, ladies and gentleman — and I'm certain my esteemed opponent and even the salivating reporters tapping out their text messages on cell phones over in press row right now would concur — is one of ambivalence concerning relations between the races. Tensions, yes, and even regrettable actions. But even while denying African Americans some privileges, some access to advantages in our state, the likes of Kissing Jim Folsum, George Wallace and even Mighty Fob have also thrown their political and moral weight behind measures which would protect and shelter minorities.

       We cannot, my friends, change the history of this state and our storied region. We cannot undo harms and insults of our formative past, but we can cease to walk around with our fingers on the hair trigger that the press and other agitators depend upon for their livelihood. Before we examine the evidence, listen to the testimony and come to the fullest understanding of how little racial acrimony was involved in the Halloween party in question on the grounds of Scabbard University, let me remind you that the legal system has already encroached upon the lives of these five fine-looking young men, some of them honor students, one an athlete on the tennis team, yet another a member of the poetry slam squad. And they are not here to deceive anyone, to damage anyone's good name or to hoodwink a single one of us. True, they would like to apologize for creating a circumstance in which offense could be taken, and they are a little ashamed of their naiveté, their not knowing the ramifications their acts might have amid the scrimmage of appetites that characterizes our socio-political environment. But primarily, out of no arrogance, but rather the legitimate pride of place and state and legacy of the truth, they are here within a football field's length of where governors take their oath of office and where Jefferson Davis once raised his hand to pledge his solemn allegiance, here to remind us all of our own serious obligation to remember, honor and act upon the motto emblazoned upon the Great Seal of our beloved state: "We Dare Defend Our Rights." I trust you would be no less bold to defend the rights of these young scholars to a simple and benign error which has grown out of proportion due (yet again) to outside agitation of the most meddlesome and belligerent kind.