Justice of Opportunity

UPDATE: You can call Michael Freeman at 612-348-5540 and Marlene Senechal at 612-348-5561, the prosecutors in CeCe McDonald’s case. Tell them you are calling as a supporter of Ms. Chrishaun McDonald and are concerned about her case.

The United States tells its citizens and residents that it is a nation governed by the Rule of Law–that everyone is equal under the eyes of these laws, and that our system of jurisprudence and law protects us as individuals and collectively. And yet even laws that look simple on the surface; say–speeding on a roadway–are experienced very differently across intersections of race, class, gender, and gender identity. Does the driver receive a citation? A warning? Is the driver asked to exit the vehicle? Is the vehicle searched? Is the driver asked to prove citizenship or residency status? Does the driver’s ID match their gender presentation? Is the vehicle presumed to be street legal? What level of suspicion does the officer presume about the driver?

Laws, after all, are written by people, and people come to the act of writing laws with their own sets of intent and motivation. People also are fallible. How else to explain the state of Kansas’s overreaching to restrict voting rights based on some observed “need” for security, when there is next to no evidence that individuals cheat the voting system, nationally or in Kansas specifically? Or as Dr. Jen Gunter notes in her pro-choice blog, how do we explain the non-medical, non-scientific, non-rational laws written to restrict reproductive rights for women?

Once we move past the idealized notion of equality in the eyes of the law—which incarcerates black men 6 times as often as white men, and poor people significantly more often than people at the middle-top (and above) of the socioeconomic ladder—we are able to assess the “spectacular” crime moments of culture. These are the cases that get stuck in the craw of the news media or make their way to the surface of our collective consciousness.

When I think about the Trayvon Martin/George Zimmerman case and the CeCe McDonald case, contradictions in how we think about physical confrontation and the law’s interpretation of same leap out at me. What are those contradictions? Well, in no particular order, I see the following:

• While homicide laws are similar across the country, other laws that transect with definitions of homicide may affect arrest and investigation procedures, and sentencing. In Florida, Zimmerman’s new attorney intends to use the “Stand Your Ground” law to show that Zimmerman had the right to shoot Martin with impunity. Even though the facts of the case show Zimmerman as the initial aggressor (and even though police dispatch told him to cease following Martin), SYG allows for the initial aggressor to justify the later use of force if an altercation causes him to be concerned for his life. Think about that in light of all the conversations we’ve had nationally regarding bullying. Minnesota, which has no SYG law similar to Flordia’s, has put CeCe McDonald, who was fending off attackers who had already lacerated her face with a broken beer bottle, on trial for one man’s death.
• Our sense of sympathy for crime victims varies according to their race, class, gender, and gender presentation. Somehow the mob of people spouting off the n-word and transphobic blather were more sympathetic to prosecutors in Minneapolis than an unarmed 17-year-old who was bringing snacks home to his little brother. Again, the “law” should be blind to how appealing a victim was; biased human judgment is another issue. Before anyone starts arguing that such sympathy isn’t important in these cases, consider that for McDonald, this lack of sympathy is part of what has put her on trial for second degree murder.
• If the law is supposedly equal, the defenses for the accused are definitely not. Zimmerman, once he was arrested last week, got a new attorney, Mark O’Mara, who is used to high-profile cases and has 30 years in criminal defense. McDonald’s defense is much less expensive, but thankfully has gotten some attention from progressive and LGBT groups. I question the efficacy of her defense; how was a $500,000 bail for a poor 23-year-old student justified in court?
• In both cases, people of color spoke up against harassment. Martin confronted Zimmerman about being followed, and McDonald responded to the older white group of people who suggested she was a rapist, f@ggot, and n*gger. Now Martin is dead and McDonald is on trial, which makes me ask why white people feel they are entitled to harass people of color. Okay, I have some ideas as to why that are probably pretty obvious, but I also point to our political leaders for allowing fringe ideas to so permeate our national consciousness. After years of anti-immigration rhetoric, anti-terrorist rhetoric, anti-social safety net policies, anti-women’s health policy and law, hyper individualistic messaging about what our taxes go to support (read: Iraq and Wall Street), and the like, the weaker minded of us feel they have a platform for their bigotry. Yes, last month’s week-long diatribe from Rush Limbaugh about birth control and the women who use it sounded ridiculous to most of us, but for a scant few in the country, it fueled their misogynistic anger. It led some people to believe there’s a place for their archaic notions of womanhood and agency. So too has all of the birther, “he’s a socialist communist Muslim” nonsense led some people to increase their own righteousness as racists. And where the law should have stepped in to challenge hate speech or hate crimes, it has instead dragged its feet to arrest a killer, and unjustly accused a woman who defended her life.
• We have a national fascination with the criminal justice system, but we understand it as inaccurately as possible. I can’t count all of the cop shows on television, the ones that portray how valiant and heroic our police and prosectors are, how incredibly lucky we are to have our system of jurisprudence and justice. It may have its strengths, and I’m sure many people go into law enforcement for all of the right reasons. Zimmerman himself is evidence that when someone has a lust for guns and power, the system can act to keep them out as authorized agents of the law, as has been his personal history. (Zimmerman still found a legal way to get a gun, which flies in the face of the rhetoric from the NRA.) However, as anyone who has lived through losing someone to a homicide can tell you, the system does not work at all like it’s portrayed on TV. DNA evidence, if it’s even collected at a scene, takes months if not years to come back, aggressors are often allowed to walk free well after an incident, good cases are thrown out on technicalities all the time, jury deliberations are prone to groupthink and bias, and sentencing is all over the place—often too light or too punitive, considering the crime. It’s not so surprising to me that Zimmerman wasn’t arrested even a month after Martin’s death (it was somewhat surprising that no evidence had been collected at the scene), because they often aren’t. The national average closure rate for homicide cases is 56 percent. Killers can pretty much flip a coin—the idea carved out by CSI, NCIS, and other forensic shows that a single strand of carpet fiber will doom a perpetrator is an entire fiction. Thus, who gets arrested, arraigned, and convicted ought to be as suspicious to us, as a question of how the criminal justice system is functioning.

I want justice for Trayvon Martin. I want justice for CeCe McDonald. I am wholly incensed that their lives have met these ends; that they faced such incredible distrust and disrespect. To hear Zimmerman talk of how his life has been ruined by his own actions is to dismiss the life that Martin no longer has. And to insist on using male pronouns for McDonald when she clearly identifies as female—which the prosecutor keeps doing—is to telegraph to reasonable people that at least part of his motivation for filing charges against her is transphobia, which puts him in exactly the same group as the people who attacked her last June.

We must demand better of ourselves and our civil servants.