Debating a friend of mine made me ask myself how we might figure out who is right? His position is basically, if you are black and a white person treats you badly, you can’t prove that’s racism — maybe the white guy is just a jerk to everyone.
Today, one Confederate flag comes down. Here’s one reason that matters.
[Here are some of my Southern credentials, in case you care: one ancestor was a City Engineer in Columbia a generation after the Civil War, who partnered with one of the architects of the South Carolina Statehouse over which that flag has flown for fifty years. Both of my parents grew up in small Southern towns, themselves raised by parents who grew up in the South, and so on back through the generations on both sides. Several generations of LaMottes were born, lived, and died in Columbia. There are many things about the South that I love and I live here now, although some say Asheville doesn’t count.]
The flag is part of a legacy in multiple ways. One legacy is what I’m calling the “It doesn’t matter . . .” legacy.
During slavery, white Americans said, “We have a right to own slaves and to be free of federal interference, and it doesn’t matter what effect being sold as property, being abused like beasts, being dehumanized has on African Americans. Black pain doesn’t matter. It doesn’t matter what people of conviction elsewhere, or even other Southerners, think about it. It doesn’t matter whether it tears the country apart.” The law and the authorities endorsed this position.
During Reconstruction and Jim Crow, white Americans said, “We have a right to protect our way of life and protect ourselves, and it doesn’t matter what effects the KKK, the terrorism of lynching, and convict leasing systems have on African Americans.” Black pain doesn’t matter. It doesn’t matter what people of conviction elsewhere or in the South think about it. And the law and the authorities endorsed this position.
During the Civil Rights Era, white Southerners said, “We have a right to live in the nicer neighborhoods by ourselves, go to the better schools by ourselves, patronize restaurants and motels by ourselves, and it doesn’t matter how African-Americans are held down and humiliated. Black pain just doesn’t matter. It doesn’t matter how others see this.” And the law and authorities endorsed this position.
In these days, and not just in the South, we have racist drug policies, and are over-incarcerating young black men. In our names, law enforcement officers are militarizing and over-using force in neighborhoods of color. The killer of a white person is many times more likely to get the death penalty than one who kills a black person. And white voices are saying, “Our streets and our officers must be safe at any cost, and it doesn’t matter how this affects African Americans.” Black pain just doesn’t matter. And the law and the authorities endorse this position.
This week, many white Southerners are saying, “The Confederate flag stands for heritage, not hate.” OK, maybe it’s not hate on your part, but it is part of this continuing legacy of indifference to the pain of African Americans. It’s still, “We have a right, and black pain doesn’t matter.” It is, “We have a right to define the flag’s meaning, and it doesn’t matter that what it means to African Americans is that they stand in a legacy of pain and injustice that continues to this day, and that it is not some few racists but the government itself that proudly flies it. It doesn’t matter that the rest of the world sees it this way, as well. Our rights and perspectives are the only ones that matter.”
Today, that flag comes down, despite vocal resistance by some white Southerners. No, it doesn’t solve everything, and that flag will continue to fly high from personal vehicles and yards (free speech). But from now on, the government itself won’t fly it. At least this week, the law and the authorities in a southern state acknowledged black pain and did the right thing – on their own, without a federal act or Supreme Court interference – and that matters a great deal.
Just having the death penalty as an option has costs, even when we don’t impose it.
We’re locking up lots of people who will eventually get out.
In the wake of multiple killings of unarmed black men by police, our public discourse has moved from Denial to what I call the “Bad Apple” phase.
If we’re going to find real and lasting solutions, we’re going to have to move the conversation forward into the next phase, in which we can have honest conversations about the patterns and systemic forces at work.
What I’m suggesting here is the tiniest step we can take in that direction, but I think it’s necessary one. And it’s something we can all do as we consume news and have discussions, which is to pay attention to the narratives in which we and others operate.
In capital cases, there is a rule that people who can’t impose the death penalty can’t sit on the jury. This rule was established when opposition to the death penalty was an outlier position, so disqualifying opponents seemed like no big deal.
For the last couple of decades, however, opposition to the death penalty has been steadily rising. More and more people are disqualified.
Do you see where this is heading?
Here’s a 2-minute video:
In the last couple of weeks, I’ve had no time to comment on the interesting things in the news. So, catching up a bit here.
Prosecutors will seek the death penalty against the man accused of Chapel Hill, NC shootings of three Muslim students.
This means the State will be looking for jurors who are sympathetic to Muslims but are also pro-death penalty.
Does anyone else think that will be an interesting group?
Death penalty appeals are enormously expensive and take years if not decades. They frustrate the victim’s family, witnesses, law enforcement, and prosecutors. And for what? They don’t ensure that we got it right.
An inmate usually cannot appeal on the basis that he is innocent. Appeals are based on errors. One might think that convicting the innocent is, by definition, error. One would be wrong.
In a jury trial, the jury decides which witnesses are telling the truth and who did what. They do this in secret deliberations. If their conclusion is wrong, that can’t be fixed unless there is also a legal error. Legal errors include a judge ruling contrary to law, a prosecutor hiding evidence, or a defense attorney failing to provide minimal representation.
Even if there is such an error, the inmate usually must also show that, without it, the jury would likely have reached a different verdict, an argument that is difficult to win, since no one knows how they reached the first one. In many cases, errors exist but don’t legally matter.
We have the idea that these appeal courts go through the case again, making sure the jury made the right decision. Not so.
Last week a federal judge resigned in frustration from a presidential commission on forensic science. That commission is charged with recommending improvements in the criminal justice system’s use of forensic evidence.
I’m not going to go deep into why this commission’s work is so important. Just this: DNA exonerations have shown us not only that the criminal justice system fails, but also some of how it fails. One of the badly broken bits is forensics.
To fix this, we may need better rules of evidence, but we will surely need better adversarial testing, which requires good disclosure of what and who and how. Put simply, not knowing in advance makes it very difficult to prepare to counter the evidence, especially when that evidence requires or purports to require some scientific understanding. And anyone saying, “It’s a match!” can sway a jury, regardless of the validity of the claim.
“Discovery” is the legal process by which evidence is disclosed before trial begins. For some reason, the discovery rules require much more pre-trial disclosure in civil law (where corporations and other businesses are often defendants) than in criminal cases. If the rules allow withholding, then withholding we shall have, and the results will be less reliable.
The details are in Judge Rakoff’s letter, but the bottom line here is that the Deputy Attorney General of the US DOJ decided that examining the discovery rules was off-limits for the commission.
Judge Rakoff then publicly resigned, stating his opinion that the unilateral decision was a mistake reflecting “a determination by the Department of Justice to place strategic advantage over a search for the truth.” This is the heart of the issue.
I’m often frustrated by what I see as typical prosecutorial bullying, and it’s easy to jump to that lens. The more important lens here, however, is that of power over the process. We must learn to differentiate the times when the government fights to win a case, which is reasonable in our system, from the times it fights for advantage in the process, which is an outrage. Our system is, by design, an adversarial one, and in such a system, the parties are necessarily going to fight to win, rather than to seek the truth. We should not expect otherwise.
No defense lawyer worth her salt will (or should) simply go sit at the prosecution table if she believes her client to be guilty. Because it is her role in the system, she will fight to force the State to prove every bit of its case within the rules. She may well advise her client (guilty or not) to accept a plea agreement. If there is a “technicality”in her client’s favor (e.g., the police conducted an illegal search), she will fight to keep evidence out. And if the jury is not convinced beyond a reasonable doubt, yes, a guilty person may go free.
That is a danger, but there is a worse one: that an innocent person may be convicted. This danger is real, as the parade of recent exonerations reminds us. [And yes, that outcome is objectively worse, because it’s a two-fer: every time it happens, a guilty person also goes free.]
Personally, I think it’s a rare prosecutor who intentionally convicts the innocent, but it’s not at all rare for a police officer or a prosecutor to be prematurely and stubbornly wrong about who is guilty. This overconfidence incentivizes walking as closely as possible to (and occasionally stepping over, especially if there are no consequences) every line. Regardless of the State’s high calling to seek justice rather than success, an individual prosecutor in an individual case—having decided to prosecute—will understandably fight like the devil to win.
The only thing that keeps this from being a free-for-all in which the more powerful side (the government) always wins is the process, the rules which protect the right to a fair trial—the defendant’s right: the defendant is the only party with constitutional rights. The founders knew which way the system would go if not carefully constrained. The rules are there to restrain the government.
The jury and judge are really the only truth-seekers, and the process is the only thing that protects their ability to find it. Everything depends on the process being scrupulously fair to the defendant.
So we must pay careful attention when the government attempts to protect or create a strategic advantage. We must notice when the government tries to use its considerable power to protect its considerable power. There’s a difference between fighting to win and fighting the ones who try to level the field.
The day after Judge Rakoff’s widely-circulated resignation letter, the DOJ relented, blaming the decision on a prior office-holder. It is not clear what effect the publicity had, but the DOJ will no longer refuse to consider the commission’s recommendations on their merits.
This doesn’t mean they will be accepted. We would do well to pay attention when the time comes.