Author Archives: Gideon

On Serial: a spectator sport for the elite

To say that our system of laws that regulates conduct between members of society is a complex entity is an understatement. While the principles underlying the passage of laws that prohibit criminal behavior and the description of behavior as criminal itself are fairly straightforward, there is almost nothing else beyond that which can be so classified.

The reasons why people come into contact with the criminal justice system, their treatment in that system, the results obtained by the functioning of that system and the output and long-term impact of having been through the system are complicated and intertwined. Economics and education play just as much of a role in what leads people to a life of crime as any inherent proclivities they might have for lawless behavior.

While most people would acknowledge the endemic problems of our system on the macro level, somehow these nuances and complexities are often forgotten when it comes to an examination of an individual case.

It seems that the easiest thing to do is to when dealing with an individual is to ignore or gloss over the fact that the defendant is, in fact, an individual. Perhaps there is something in the human mind’s coping mechanism that forces us to do this, in order to avoid confronting the life-changing impact that the machinery of the justice system has on individual lives.

Most people get their exposure to the justice system not from personal observation or participation, but rather from news reporting by local and national news organizations, newspapers and online periodicals. It is through this lens that defendants, judges and lawyers are presented to the public at large, which often includes judges, jurors and legislators. Public policy and decisions in individual cases are thus formed and shaped and influenced by the perspective of the justice system that is put forth by those in control of the news.

It is this perspective that framed the “tough-on-crime” years in America, which lead to excessive sentences for drug offenders, absurd mandatory-minimums which handcuff judges and prevent them from making individualized decisions, a rampant death penalty and fear-mongering election campaigns which persist to this day.

This one-size-fits-all view of all defendants as mythical “criminals” also influences jurors who are called upon to serve and determine the guilt of an individual. As Justice Frankfurter explained in Irvin v. Dowd:

One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure…How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding the matter designed to establish the guilt of the accused.

But the perspective to report fairly and neutrally and intelligently is hard to come by when the reporting is done exclusively by people with little or no familiarity with the justice system. Take, for example, America’s darling crime story of the last year – Serial and the murder of Hae Min Lee by, perhaps, Adnan Syed – and the storm of discussion surrounding the format and the narrator Sarah Koenig. While a significant proportion of the criticism focused on the racial insensitivity, Koenig’s greatest sin in my opinion was letting this opportunity to shine a spotlight on the fallibility of the criminal justice system go wanting.

By making the show about Koenig‘s own Woody Allen-esque quirks, she shines that spotlight inward to her own perspective, her own life-experiences and her own reactions to the facts of the case and then processes of the criminal justice system. Koenig’s assertions that “they must have had enough evidence to convict or else they wouldn’t have convicted him” lay bare a lack of understanding of reality.

That is because, in the end, she is a spectator, just like the hundreds of thousands who tuned in and downloaded her episodes. To her, just like to the many who write court reports by lifting out of the police blotter, experience is always shaped by being in the spectator’s section of a courtroom. To her and those like her, the system is fair and the system is just and that’s a matter of black and white. It is the modern day Coliseum – those who have can sit and watch the blood sport of those who have nothing and are subjugated by a system that confounds at every turn.

It’s unfortunate that Serial has become so popular as a detective story rather than an examination of how imperfect our system of laws is because it has legitimized the idea that the fallibility of the criminal justice system is nothing more than a spectator sport; that there is always a right outcome and a wrong outcome and that the job of the observer is to suss that out, instead of realizing that such an attitude strikes fear in the hearts of those hundreds of thousands who have to rely on the podcast listening elite to determine their fate.

[This is my latest column for the CT Law Tribune.]

Rewarding lying cops: America’s crisis of faith

There is a crisis of faith in America. A crisis that exposes the deep chasms that exist in our society. Traditionally a community caretaking function, and thus deserving of the highest levels of faith, trust and respect, policing in America is now a flashpoint; a litmus test through which to determine which side of the privilege aisle you rest your head on.

A Gallup poll released last week showed that while police departments were one of the institutions that Americans on average had the highest confidence in (57% overall), this was belied by deep divides among racial and political lines. Although, it should be noted, that 57% confidence in an institution whose sole function is to protect the lives and liberties of fellow citizens is truly an abysmal number.

Mathematics suggests that this overall percentage would be higher if police departments decided to make an effort to treat black individuals with the same care and respect they seem to treat white individuals. Blacks trust police at around 34% and urban blacks even less so.

Can you blame them? After the events of the last 5 months, starting with the death of Michael Brown, through to the homicides of Eric Garner, John Crawford and Tamir Rice, through to the mass demonstrations, the no-protesting zones, the “rioting”, the curfews, the non-indictments of Darren Wilson and Daniel Pantaleo, all of this piled onto the overwhelming yoke of stop and frisk, tough-on-crime, the drug war and a lost generation, is there any reason to expect that black Americans should trust any police officer?

Is it any surprise that there is no faith in the community caretaking function of visitor-officers, who are increasingly not a part of the community they purport to keep secure? Do we have any right to demand respect for people like Cleveland Police Patrolman Union chief Jeffrey Follmer who repeatedly refer to a slain 12-year old boy as “the male” and justify the actions of a police officer who almost immediately upon arriving at the scene shoots and kills that child? Why would any level-headed, rational, liberty-loving American give any modicum of respect to a police officer who believes, like so many before him, that it is their job to give orders and civilians’ jobs to obey and get out of the way, or die.

“How about this: Listen to police officers’ commands. Listen to what we tell you, and just stop,” he said. “I think that eliminates a lot of problems.”  “I think the nation needs to realize that when we tell you to do something, do it,” he added.

This is an actual statement by an actual police officer made in 2014 in the Greatest Country in the World, with all its individual freedoms and liberties.

Is there any wonder that there is no respect for police officers, when, on the one hand our courts repeatedly remind us that there is no greater public policy interest than one that ensures the truthfulness and integrity of police officers. These are the people we pay to protect us at night as we sleep. These are the people whom we ask to step in front of bullets for us. These are the people of whom we expect honesty, compassion and a desire to “serve and protect”.

Though if you were to step into a criminal courthouse in America, you would see that there is less truthfulness and more truthiness – truth that wouldn’t stand to be held back by facts – when it comes to testimony from police officers. Is it any wonder, then, that when black Americans accused of crimes confront their Blue Uniformed accusers and listen to them twist and churn and shuffle the truth into truthiness, that they would lose all respect?

I know of no sensible, pot-smoking, drug dealing individual who, upon being approached by police officers, would roll down his windows and offer up the information that he was carrying a lot of marijuana in the car. Yet this account of spontaneous confession is among the most popular narratives to be recounted in police reports across the state and, I suspect, the country.

I am sad to report that courts accept this ludicrous version of events. Is it because they willingly turn a blind eye to a dubious report of an encounter with an eye to a greater good – getting the drugs off the street – or is it because they truly have no experience in the world that is the subject of these prosecutions that they must believe that all Americans are Police fearing first and God second. For it is true that the police “serve” and “protect” the demographic that has up to very recently been the one that overwhelmingly populates our judicial benches.

Malice is not required to discriminate against others and I am certainly not implying that such malice exists. The injustice is a product of the way the system is set up and has been for decades.

Yet how do we ask our fellow citizens to trust and respect the police, especially when dishonest behavior on their part is not only not punished by our courts, but rewarded.

Earlier this week, our supreme court reinstated the employment of a police officer who had been terminated for lying while on the job. In a 3-2 opinion [PDF], the majority concluded that while there existed a strong public policy in requiring police officers to be honest, because this particular officer’s lies weren’t frequent or under oath, it wasn’t worth him getting fired. They cite to Brady v. Maryland as an example of the police’s duty to be honest and seek justice, which is ironic, because a prosecutor in Texas has just filed suit against his office for firing him for disclosing exculpatory information. But back to this case.

Officer Justin Loschiavo, of Stratford, CT, was suffering from epilepsy but had them under control. One day, in 2009, he suffered a seizure, lost control of his patrol car and struck two other vehicles. While no one was injured, he was removed from patrol duty. Over the course of the next 6-9 months, he sought to be reinstated. To that end he got clearance from his personal physician and then met with someone the town had hired to evaluate him.

Turns out, he removed documents pertaining to his seizures and his alcohol use from the file that he turned over to the town’s doctor. It was for this lie that the town sought to terminate him.

The majority makes a big deal of the fact that he didn’t lie to other officers or in the performance of his duties, but as the dissent from Justice Palmer points out [PDF], these are absurd statements: he lied and he lied to remain a police officer. He lied about his medical condition which could put others at risk. If that doesn’t strike at the very heart of what a police officer is supposed to do: be honest, be sincere and help others, then I don’t know what would. It makes no difference that he didn’t lie under oath. How are we to trust that when he does take the stand, with someone else’s liberty at stake – that what comes out of his mouth will be the truth and not some self-serving statement?

Justice Palmer concludes:

In sum, the town had no choice but to terminate Loschiavo’s employment as a police officer because his intentional and serious dishonesty has grievously compromised his credibility and integrity, and he has been rendered unfit to serve as a sworn officer.

I think the same can be said of black Americans’ view of police departments as a whole.

[This is my latest at the CT Law Tribune.]

One last gasp: Eric Garner and the failure of racial justice

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The last words of Eric Garner, and perhaps the last gasp of the veil of ignorance that shrouds law-abiding suburban folk from the reality of the racial injustice that permeates and destroys every other part of America.

This is an incredibly complex issue – well, it is an incredibly simple issue to frame, but exceedingly complex to unpack, understand and solve.

Eric Garner was killed, that much is sure. That no one is to blame – legally – for that death is a mild surprise. That a prosecutor shirked his responsibility to do justice yet again is nothing but business as usual.

There is a racial divide in America. That much is certain. But how is it divided? Along what lines or groups or frames of reference? That’s the complex question.

In a must-read article at Salon, Rutgers professor Brittney Cooper explores and explains this:

There is a real disconnect between what white people know and what black people know in this country. Philosophers and political theorists understand these as questions of “epistemology,” wherein they consider how social conditions shape our particular standpoint, and ability to apprehend the things that are supposed to be apparent to us. “How do we know what we know?” is one way we might ask the question.

In other words, it’s a frame of reference problem – it’s a privilege problem – it’s a luxury of the oppressors problem.

The invisibility of black rage, black pain and black humanity are all elements of the same problem. That problem is a framework problem. Because Darren Wilson did not use any racial slur to refer to Michael Brown, our current racial frameworks are inadequate for helping your average all-American white people think through the contours of this encounter. That problem has plagued us since the beginning of this case; it dogged us throughout the Zimmerman trial; and it is helped along by the deep emotional dishonesty that characterizes race relations in the country.

Do you cross the street when you see a black person walking toward you at night? Do you think about the people who do cross the street? Do you think about how many people cross the street and how it impacts our government’s policies and laws? Do you think about how you’ve benefitted from those laws and policies?

 

There has been tremendous support for racial justice in the last few weeks, starting with Michael Brown and now with Garner. Protests, “die-ins”, boycotts and the like. But how does one explain to these well-meaning folks that the fight doesn’t end with the indictment of one officer or two? How does one explain that the racial oppression and injustice in America is omnipresent and attacks from all sides?

And no one denies that high-crime neighborhoods disproportionately overlap with minority neighborhoods. But the intersections don’t stop there. Concentrated poverty plays a consequential role. So does the school-to-prison pipeline. So do the scars of historical oppression. In fact, these and other factors intersect to such a degree that trying to separate any one — most often, the racial one — from the rest is bound to render a flimsy argument based on the fallacy of discrete factors.

Yet people continue to make such arguments, which can usually be distilled to some variation of this: Black dysfunction is mostly or even solely the result of black pathology. This argument is racist at its core because it rests too heavily on choice and too lightly on context. If you scratch it, what oozes out reeks of race-informed cultural decay or even genetic deficiency and predisposition, as if America is not the progenitor — the great-grandmother — of African-American violence.

Cops shoot minorities dead on the streets, but our courts also take away their lives. In the justice system, criminal in code for minority.

It seems, however, that people – usually white, middle-class, affluent – believe that there are two sets of laws and rights: one for criminals (minorities) and one for the “regular” folks. Professor Cooper again:

Too many white people lie comfortably in bed each night with the illusion that justice was served, that the system worked, that the evidence vindicated the view that they need to believe – that white men do not deliberately murder black boys for sport in this day and time and get away with it. Most well-meaning white people need to believe this. For me as both teacher of different kinds of epistemology and as a black person, I do not have the luxury of believing this. I do not have the luxury of stepping over the bodies of Eric Garner, John Crawford and Tamir Rice, leaving my unasked questions strewn alongside their lifeless bodies.

It is easy to believe this. It is psychologically very easy to take the high road; to hold oneself up high above others. It is easy to distinguish oneself from “criminals” or “minorities” who get caught up in the justice system and call them “bad” or “evil” or bemoan their inability to rectify their lives and live the straight and narrow. It’s easy to judge their failure and chalk it up to a “lifestyle”. It’s easy to want to be law and order and support harsh and strict policies for punishment. It’s easy to point out statistics that purport to show that a majority of crimes are committed by minorities and thus, minorities are more prone to committing crimes.

Moral superiority is, after all, a sin. But most of us fail at recognizing our own sins. Most of us fail to see the causes for the differences between us and them. Most of us are oblivious to the opportunities that are present for us, but not for others.

Racial injustice needs to be viewed in the whole: from educational policies to municipal funding to tough on crime to housing to lack of re-entry to the long-lasting impact of felony convictions to the lack of alternatives and rehabilitation to the hidden prejudices that we keep re-affirming every time we watch Nancy Grace or CSI or Law and Order.

So protest all you want today, but realize that you haven’t done your part to change injustice yet. Not even close. You’ve barely opened your eyes as Eric Garner closed his.

3 images about Ferguson you need to have handy today

I bet you’re all going to hang out with family today. All families, by law, have one or two racist fucktards who are gonna go on and on about how the Officer was defending himself and acting properly in the line of duty. They’re not gonna get it, but to explain that requires reading.

Here are three images – because people like your Uncle Bill aren’t the best at reading good – that you should print out and shove in their faces:

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Via. Note the staggering number of NA for Darren Wilson.

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Via. There’s more at the link.

And if you really want to troll someone – and why wouldn’t you? – there’s this:

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Via.

Happy Thanksgiving.

1 thing you should do after Ferguson

There are lots of websites out there giving you advice on what you can do to help and change things after Ferguson.

It’s cute. It’s stuff like “understand things better” or “hold hands y’all” or “be good to each other” or “realize that black lives matter”.

It’s hogwash. None of that will change anything. I’m here to give you the straight dope. The skinny. The real deal. The inside info.

Here’s what you should do to change things.

  1. Get on a jury.

  2. Vote to acquit.

Done. The more marginal, he-said she-said, uncorroborated, victim-less crimes you acquit defendants of, the less incentive there will be to prosecute such crimes, the less injustice there will be, the fewer police resources will be spent on bullshit and fewer people will die.

Here’s a comedian telling you essentially the same thing, but funnier:

This isn’t about Michael Brown

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This isn’t about Michael Brown1. Or rather, it isn’t about just Michael Brown. It certainly isn’t about only this Michael Brown. It’s about race, power and a system that just affirmed itself.

It’s about anger at a system which has trained the powerless to accept their lack of power over and over again. It’s about anger at a system, that despite the promises of the civil rights era, has only affirmed the status quo: some lives are worth more than others. Some people will always get punished more harshly than others.

It’s about anger that those who are the most underprivileged, the most disenfranchised continue to be subjugated under the guise of the best system in the world.

It’s about anger that the ethnic majority has historically viewed and continues to view minorities as dangerous and frightening. It’s about anger that the majority is doing its best to clutch onto its slipping grasp through intimidation and fear.

Michael Brown was shot and killed by a police officer, like many, many others have been shot and killed by police officers. Darren Wilson wasn’t indicted or charged for that shooting like an overwhelming number of police officers haven’t been charged. While whites are certainly victims of police brutality, minorities are overwhelmingly so.

The anger is because it seems that Michael Brown was shot because of his race – and that doesn’t mean Officer Wilson shot Michael Brown specifically because Michael Brown was black. Rather, Wilson shot Brown because of what he believed about black people; what we’ve all read and heard about black people; what we’ve all been conditioned to realize about black people; what popular media regularly portrayed black people as.

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And more:

So when he stopped, I stopped. And then he starts to turn around, I tell him to get on the ground, get on the ground.

He turns, and when he looked at me, he made like a grunting, like aggravated sound and he starts, he turns and he’s coming back towards me. His first step is coming towards me, he kind of does like a stutter step to start running. When he does that, his left hand goes in a fist and goes to his side, his right one goes under his shirt in his waistband and he starts running at me.

At this point it looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him.

And the face that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.

Like an animal. Michael Brown was an animal to Darren Wilson.

That’s what this anger is about. That this non-indictment exposed the gaping race chasm in America: white people love police and authority when it comes to maintaining the social order. That social order is fairly simple: there are the whites who can do whatever they want, then there are the “criminals” and the “minorities” and the “gays”, except those that act like the white people. The system exists to contain the teeming masses of minorities/criminals and to keep them in check. If a black man is killed by a police officer, well that’s his fault.

As I’ve written before, for White America, the police force exists as a private security force, to keep them and their belongings safe and secure and separate from the uncouth, uncivilized and dirty Blacks and Hispanics. (Here’s another must-read on the subject from The Atlantic.)

For the rest of America, the police force is sadly nothing but an oppressor acting with the imprimatur of the greatest Democracy in the World.

That’s what this anger is about. It’s about the death of one boy, for sure, but it’s also about the death of the right to be free and the right to be equal in America.

It’s about the death of Dr. King’s dream.