The words were the same insipid appeal to emotion used by every manipulative tough-on-crime prosecutor ever.
To me, the trials underscore how ill-equipped the criminal legal system, process, and punishment is to achieve accountability and healing. Ahmaud Arbery’s killers were sentenced to life without the possibility of ever being released. Sentenced to death in prison. Yet still, his killers remain unrepentant and indignant. Meanwhile, even worse: Arbery’s family remains unwhole, unhealed, traumatized.
Except these words didn’t come from Bill Otis, but from Scott Hechinger, formerly with Brooklyn Defenders and now “the executive director of Zealous, a national advocacy and education initiative that uses media and the arts to combat systemic injustice.” To some, this would be the definition of flagrant hypocrisy, a public defender arguing for multiple prosecutions because a sentence of death in prison isn’t harsh enough. What about the victim’s family? What about their pain?
But the paradigm of hypocrisy doesn’t work here, because the goal has nothing to do with principle. Only outcome. And if the race of the defendants and victim was swapped, he would argue the opposite without a moment’s hesitation, without the slightest sense of shame. What is being advocated here has nothing to do with constitutional rights, excessive punishment, even the trauma of victims. What his “educational initiative” teaches is how to twist the story, shift the narrative and do so without an iota of remorse.
Much as Bill Otis’ hatred of defendants is reprehensible, at least he’s consistent and principled in his position. This is unadulterated whoring for the preferred outcome, this time for the ruin of the defendants because of their race and the need to have them break down and confess their racism.
“I hope that this second trial, which may result in a verdict that their crimes were actually motivated by racial animus, brings some closure to the family,” Hechinger added. “I fear that it won’t. I fear that the worst possible outcome may be new expansion and harsher application of federal criminal laws and sentences that we know from experience, always disproportionately get enforced against Black and brown people and people of lower socioeconomic statuses.”
There is no possibility that these words will ever be uttered, even with the half-baked Gertruding suggesting that he at least recognizes that his cries for conviction will backfire on the defendants he loves and not only the defendants he hates, for different defendants, even if charged with murder. Doesn’t the family of a white victim at the hands of a black killer need closure? Do they not suffer trauma? “What about their pain?”
This isn’t criminal reform, as that concept is understood by anyone with a moral compass that points at principles, but social justice that cares only that the “right” outcome happen based on their ideological orthodoxy. In this case, the “right” outcome has nothing to do with the crime of murder, as the defendants are already convicted. It has nothing to do with the punishment, as they got the slow death penalty. This is about the confession of racism, the thought crime that is worse than any killing, and the case cannot end until these defendants are branded racists.
But will they be?
Bryan Adamson, a professor of the First Amendment and civil rights at the Case Western Reserve University School of Law, noted that a second trial can be necessary when the deprivation of someone’s civil rights results in death.
Adamson told Vox that federal prosecutors will have a much different hill to climb than their counterparts in the state’s trial. However, the burden of proof is, in a sense, also on the defense this time around.
“Prosecutors are going to have to demonstrate, by direct or by circumstantial evidence, that the defendants were motivated by the race of Ahmaud. That brings in some nuances and issues regarding proving motivation, which can be a challenge,” Adamson said. “The prosecution has to put it front and center, but the defense then has to attempt to present a case that shows that there was anything else but race that motivated them to do what they did.”
Is that how it works in a federal prosecution for violating someone’s civil rights, that the prosecution need only “put it front and center,” the burden of production, and then the burden shifts to the defendants to prove they weren’t motivated by race? Screw the presumption of innocence. Who cares about the burden of proving guilt beyond a reasonable doubt. When the defendants are hated, and the crime is hated, who cares if the new burden is on the defendants to prove their innocence?
Racial bias may not be difficult to prove, if history has any role to play. Bryan and the McMichaels claimed in state court that they were attempting a citizen’s arrest for a series of alleged burglaries for which they suspected Arbery, though they had no evidence. They argued their encounter was legal based on a Georgia code, since repealed, that dated back to 1863 — a law that “was basically a catching-fleeing-slave law,” Cornell University criminal law expert Joseph Margulies told NPR in October. Even the excuse that the men hoped would absolve them was stained by racism.
Does the argument that the law upon which they wrongly relied had racist origins prove anything about motives today? But when any argument, no matter how ridiculously irrelevant furthers the cause, people will make it and sycophants will buy it.
Will a jury determine that the act of chasing Arbery down and shooting him dead with a shotgun constitutes an interference with his civil rights?
If they don’t, then what do we as a country call that, exactly?
The author, Jamil Smith, put the question somewhat different on twitter.
Some of us hope for a country that adheres to principles for every defendant of every race for every alleged crime. And some, like Smith and Hechinger, just want the people they hate for committing the crimes they hate to go down, no matter what.