Rules Change For Those They Hate

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.

 

5 thoughts on “Rules Change For Those They Hate

  1. Guitardave

    Half of us are in the apple
    Half of us are in the pie
    All of us are in the pudding
    When the last bus has gone by
    Someone has to take the high road
    Someone has to make the bed
    No-one has the right to tell you
    To lie down when all is said

    The black and white, the stereotype
    The polarising pitch at play
    While some of us sit in between
    Interminable shades of grey
    No need to walk the tightrope
    Set out on that great divide
    The balance scales may tremble
    But the featherweights are on our side

    Carrying the Zealot gene
    Right or left, no in between
    Beware, beware the Zealot gene
    Naked flame near gasoline

  2. delurking

    Now that the McMichaels have been sentenced to life without parole, everything about the federal trial is incoherent. The Arbery family wants the McMichaels in state prison because it is nastier than federal prison, and to that end they objected to the plea deal. But, as long as the trial is happening, the McMichaels get to do something with their days that has to be much more interesting than just sitting in state prison. And, at the end of the federal trial the McMichaels may or may not end up in federal prison, which is what they apparently prefer anyway. So what is the point? There is a trial so the federal prosecutor can try to convince 12 random people that the McMichaels are racists? If they wind up with one of those people who thinks Michael Slager and Derek Chauvin were railroaded, they lose the trial. If they don’t, they win. And if they win, the Arberys will feel better? Until all of this is forgotten, there will be millions of people on crackpot websites claiming the McMichaels, Chauvin, Slager, etc., were railroaded and Arbery, Floyd, Scott, etc. were appropriately killed. The 12 saying the opposite make a difference? The prosecutors, the defense attorneys, the jurors, the staff, everyone involved in this trial other than the McMichaels would contribute more value to the world if there were no trial.

  3. David

    it’s been clear for quite a while that the more zealous reform activists cannot be trusted, as they frame their grievances dishonestly and leave out salient details that undercut their claims. This is particularly true for Heck and his ilk, and I’ve thought of them as shameless hypocrites.

    But you make an interesting point that I hadn’t really considered. To think of them as hypocrites is to put them in my paradigm, where honesty matters, whereas they care nothing about integrity and will do and say whatever they have to sell whatever end game they want.

    The Vox post was the usual shallow nonsense by a clueless self-serving partisan one expects from Vox, right down to the n-word clickbait in his twitter. But that Hech would spew such prosecutorial carceral rhetoric is shocking, but for the fact that he has no integrity and will say anything to manipulate the fools who don’t know better.

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