States of Exception

Published on The Nation (http://www.thenation.com)

 

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The Real Injustice at the Heart of the Trayvon Martin Case

| April 18, 2012

At first there was near-unanimity of outrage and dismay. But in recent weeks, the polls reveal that Americans’ attitudes about the killing of Trayvon Martin have become starkly divided by race and party politics: eight in ten blacks say Martin’s killing was not justified, compared with just 38 percent of whites. Meanwhile, 56 percent of Republicans believe that there has been “too much coverage” in the media, as opposed to 25 percent of Democrats. There are plenty of theories to explain this shift, but surely one driver is that we seem to have stopped talking about the case itself and unconsciously substituted for it our usual litany of social anxieties.

It’s curious that so many discussions take an inevitable turn that is prefaced by: “Why aren’t we talking about…” The list of what we supposedly aren’t talking about is long and predictably partisan: gun culture in America; racially disparate rates of arrest and incarceration; “race card” playing; media as circus; statistics about “black-on-black crime”; school shootings as exemplary of “white-on-white” crime; “reverse racism”; high- and low-tech lynchings; Prohibition-era gangsters versus drug-prohibition-era “gangstas”; hoodies as exuding a nefarious life of their own; profiled presumptions-of-guilt as trumping constitutional presumptions-of-innocence; the propriety of shadowy organizations like ALEC crafting, funding and proselytizing for Stand Your Ground laws nationwide; whether Hispanics are white; and whether President Obama’s putative son does or does not look like Newt Gingrich’s putative son. These may be worthy issues, but they have drifted our focus away from how specific facts about the Martin case intersect with the specific peculiarities of Florida law. Given that George Zimmerman now faces trial, now is a good time to remind ourselves what this case is actually about.

Here’s the relevant text of Florida Statutes Chapter 776: “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if: …He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.” Any person who does have such reasonable apprehension is “immune from criminal prosecution and civil action.” However, this immunity is not available to one who “initially provokes the use of force against himself or herself.”

Thus framed, the issues are relatively simple: Was Zimmerman’s belief that his life was in danger a reasonable one? Was his admitted pursuit of Martin “necessary to defend himself”? And did his admitted initiation of the encounter provoke use of force by Martin? These are questions of fact, now properly before a court of law.

What makes the case exceptional is neither race nor the politics of self-defense alone but rather the complete failure to prosecute—or even investigate—before now. Among the many flaws of Stand Your Ground, the standard of reasonable belief is not a warrant for total subjectivity. “Reasonableness” is an objective measure in the law; it refers to a public or community standard, not a privatized state of mind. The reason this case attracted such attention in the first place was the shocking complacency of the Sanford Police Department as enforcers of that standard.

Police failed to follow the most basic procedures for a homicide investigation: Zimmerman was never tested for drugs or alcohol, while Martin’s body was. After sticking him in the morgue, there was no attempt to identify Martin or to notify his family. This was not just sloppy and unprofessional; it flouted basic tenets of our jurisprudence. The police’s facile conclusion that there was nothing to contradict Zimmerman’s account is explicable only on one of two grounds: either they blindly deferred to the word of the confessed killer and thus abandoned any adherence to a community standard; or they instinctively shared Zimmerman’s vision, establishing being frightened to death by a young black man as a reasonable community norm.

Another strange feature of the current debate is the frequent assertion that because there were no witnesses to the shooting, there is “no evidence.” In fact, there is plenty: forensic reports about signs of struggle, the fact that Martin was unarmed, Zimmerman’s 911 call detailing intent to pursue Martin despite police exhortation not to, Martin’s phone conversation with a schoolmate, the voiceprint analysis of cries for help and, of course, Zimmerman’s catalog of at least forty-six prior calls to 911 to report a panoply of misplaced suspicions directed at unidentified others. The fact that this is “circumstantial evidence” does not render it a lesser kind of proof. Most crimes don’t come outfitted with cameras focused on the crime scene, after all, particularly homicides. Nearly all convictions are won by pointing to the irrefutable logic of a picture drawn from largely circumstantial bits and pieces of evidence.

Finally, there are those—particularly our friends at Fox News—who conflate the call for justice with a call to convict. This is a fundamental misapplication of civics. It’s worth repeating: what’s distressing about Martin’s death is that it took so long for his killer’s actions to be interrogated at all. Political philosopher Giorgio Agamben has observed that what distinguishes a state of exception is “not the chaos that precedes order but rather the situation that results from its suspension.” When law enforcement officers accept—without question—an admitted killer’s assertion that a homicide was justified because “he scared me,” they license open season. Without question.

Eyes of The Beholden….

Published in The Nation (http://www.thenation.com)
Our Dangerous Devotion to Eyewitness Testimony

Patricia J. Williams | January 18, 2012

 
“We see what we want to see,” my grandmother used to say. This insight visited me recently after I ran across the mall chasing a woman I thought was my cousin. It wasn’t, as it turned out, but I didn’t realize that until after I had puffed up behind her, bopped her amiably on the shoulder and cried out, “Boo!”

How was it possible, I thought in retrospective embarrassment, to so wrongly misidentify someone I know so well? Empirically my experience was all too common. I’d been thinking about my cousin a few moments before and saw the woman through the lens of those thoughts. We often project our life’s associations onto the faces of strangers. Constantly—if mostly unconsciously—we familiarize them with learned stereotypes. If we are wise, we learn to take caution with our assumptions. We recognize this innate fallibility, and most of the time it doesn’t matter very much.

Oddly enough, however, we reverse that supposition in the one context where fallibility matters most: in criminal cases, eyewitness testimony is viewed as the ne plus ultra for the prosecution, despite a century’s worth of psychological and sociological studies revealing that, from Sacco and Vanzetti to Troy Davis, witnesses misperceive a startling percentage of the time. “Human beings are not very good at identifying people they saw only once for a relatively short period of time,” writes Cornell law professor Michael Dorf. “The studies reveal error rates of as high as fifty percent—a frightening statistic given that many convictions may be based largely or solely on such testimony. These studies show further that the ability to identify a stranger is diminished by stress (and what crime situation is not intensely stressful?), that cross-racial identifications are especially unreliable, and that contrary to what one might think, those witnesses who claim to be ‘certain’ of their identifications are no better at it than everyone else, just more confident.”

The costs of this phenomenon are perhaps best revealed in data compiled by the Innocence Project, which has concluded that out of 281 postconviction exonerations secured through DNA in the United States, eyewitness misidentification “was a factor in 75 percent…making it the leading cause of these wrongful convictions.” Luckily, there are substantiated ways to guard against such error. Experts have cited two main types of variables that can adversely affect eyewitness identification: “estimator variables,” the hardest to control for, which include things like the degree of lighting, distance or speed within a given crime scene, as well as the level of trauma to the witness; and “system variables,” defined as “those that the criminal justice system can and should control,” which include law enforcement tools like lineups and photo arrays. A number of reforms involving the latter have the proven capacity to boost the accuracy of witness IDs. These include “blind administration,” where an officer conducting a lineup is not aware of who the suspect is (and thus not capable of revealing his or her identity via gestures, vocal inflections or body language); “non-suggestive” lineups, made up of people who generally resemble a witness’s description, so that the suspect does not stand out; allowing witnesses to sign a statement indicating their level of confidence in their choice; and presenting members of a lineup sequentially rather than simultaneously (to mitigate the pressure to choose any kind of close-looking one when we are presented with a bunch of faces at once). Such remedial safeguards have so reduced the error rate—and so indisputably—that a number of local jurisdictions and eleven states thus far have adopted some or all of them as standard operating procedure.

It would seem logical, then, to implement these reforms universally, and for courts to screen eyewitness evidence for those basics of procedural reliability before such testimony is heard by a jury. But on January 11, in Perry v. New Hampshire, the Supreme Court rejected that notion, ruling that such a pretrial inquiry is not a requirement of due process “when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” This is subtle language: it’s not the same as what we think of as police corruption, as in overt suppression of evidence. Rather, it relates to the kinds of situations at stake in Perry: Was the suspect the only black man in a lineup? Was he handcuffed and flanked by police? Was his image shown in photo array after photo array until he began to look familiar? If the chief investigator was the one administering a lineup, was his belief in the suspect’s guilt communicated to the witness via subtle coaching? All such factors may be highly suggestive, triggering the irrelevant associations and false memories that can lead to inaccurate results.

Perry does two unfortunate things. It undercuts pretrial examination of virtually all “estimator variables,” no matter how problematic, since those are less likely to directly involve police. And by drawing the line at “unnecessarily suggestive” actions by state actors, the ruling sets a very high bar for challenging eyewitness evidence, ignoring the hefty empirical proof that misidentification is a pervasive fact of life. Justice Sonia Sotomayor, the lone dissenter in Perry, wrote that this ruling invites arbitrary results by making “police arrangement” the “inflexible step zero.” The concerns of due process ought to be based on the actual likelihood of misidentification, said Sotomayor, “not predicated on the source of suggestiveness.” Reiterating that any preventable misidentification is a miscarriage of justice—not merely where the police are setting the stage—she underscored the Innocence Project’s concern that inaccurate eyewitness testimony is the leading cause of wrongful convictions in US courts. DNA has exonerated eight misidentified inmates on death row. If we have at our disposal simple reforms that have been proven to guard against such tragic mistakes, why on earth should we not implement them universally?

Source URL: http://www.thenation.com/article/165725/our-dangerous-devotion-eyewitness-testimony

The Defense Authorization Act: Legalizing Illegality….

Published on The Nation (http://www.thenation.com)

The Dangerous Defense Bill Heading Toward Obama’s Desk

Patricia J. Williams | December 14, 2011

You know these are interesting times when Glenn Beck, Dianne Feinstein, Rand Paul and the ACLU all stand on the same side of an issue. The issue in question is Subtitle D of the National Defense Authorization Act (NDAA), particularly Sections 1031–1033, being discussed by the House and Senate as I write and headed to the president’s desk any day now. These hastily added, under-the-radar provisions, co-sponsored by Senators John McCain and Carl Levin, would allow for the indefinite military detention of any person alleged to be a member of Al Qaeda, the Taliban or “associated forces.” The provisions also apply to any person who supports or aids “belligerent” acts against the United States, whether the person is apprehended beyond our borders or on domestic soil.

For noncitizens, such detention would be mandatory. And while news agencies from Reuters to the Huffington Post have recently reported that American citizens would be “exempt” from this requirement, the truth is more complicated. Military detention would still be the default, even for citizens, but at the discretion of the president, it could be waived in favor of handing over the case to domestic law enforcement. Under this law, if the Defense Department thinks you’re a terrorist, there would be no presumption of innocence; you would be presumed a detainee of the military unless the executive decides otherwise. Without such a waiver, again, even if you’re a citizen, you will never hear words like “alleged” or “suspected.” You will be an “unprivileged enemy belligerent,” with limited rights to appeal that status, no rights to due process, or to a jury, or to a speedy trial guided by the rules of evidence.

According to the “law of war” invoked by these sections of the NDAA, a person in military custody can be held indefinitely, without charge and without access to civilian courts. Perhaps most significant, with the suspension of constitutional provisions for due process, there would be no Fifth Amendment right to remain silent. During the Congressional debate over the NDAA, proponents like Senators Saxby Chambliss and Lindsey Graham argued that when we capture someone who is deemed an enemy, we must start with the presumption that “the goal is to gather intelligence” and “prosecution is a secondary concern.” In numbingly infantile terms, they declared that “the meanest, nastiest killers in the world” should be questioned for “as long as it takes,” without them “lawyering up.” This need to make “them” talk was cited repeatedly, endlessly, as the main justification for military detention, with references to “surprise” technologies to get prisoners to speak. As though Abu Ghraib had never happened, there was exuberant embrace of methods Senator Graham promised would not be publicized by the Army Field Manual.

Against the backdrop of President Obama’s recent exercise of that broadest of all possible executive actions—the targeted assassination of US citizen Anwar al-Awlaki—the controversy over military detention (and Obama’s threat to veto the NDAA) might seem less dramatic. (Senator Graham carried on gleefully about how much less constrained death is than “indefinite detention.”) But there is a crucial distinction: killing Awlaki, however extreme, was an action ostensibly based on tailored and specifically considered intelligence. Whether or not one agrees with it, it was not a decision generated by the kind of far-reaching, automatically militarizing mechanism this law would institutionalize.

As with much post-9/11 rhetoric, the Congressional debaters spoke of “terror” as though it were a clearly defined and embodied evil. But it is not at all clear what distinguishes mere dissent or sympathy or belief or commitment or satire from the kinds of expressions of hostile ideologies that this legislation would deem dangerous. If passed, the NDAA will inevitably be followed by a raft of First Amendment litigation.

And what about “high crimes” like treason—would they still be tried in federal courts? Is treason more or less worrisome than “terrorism”?  Talk about ironic constitutional constructions: Glenn Beck’s online magazine, The Blaze, recently published a straightforwardly libertarian critique of the bill; the comments from his readers sizzle with Second Amendment belligerence from those “patriots” who declare that they are running out to buy more ammo and defecting to the hills. (“Want to see an army vet become a domestic terrorist?” reads the first comment. “If they pass this law…I will adopt a strategy of asymmetric warfare against the US government.”)

This latter breed of discontent also dovetails, no doubt, with deep, lingering resentments over states’ rights dating back to the Civil War, when the Union army occupied and governed Southern states in an effort to maintain order and protect ex-slaves. (Indeed, the proposed law would in effect revoke the Posse Comitatus Act, the Reconstruction-era law that bars the Army from engaging in domestic law enforcement.) In a less obvious way, the stripping of due process also re-establishes first- and second-class tiers of citizenship, eviscerating the Fourteenth Amendment by allowing the rights of citizenship to be suspended even more comprehensively than birthers and anti-immigration activists could have dreamed: by simple fiat.

“Citizen or not,” insists Senator Graham, it’s only “using good old-fashioned common sense” that persons covered by the act shouldn’t be given more rights than if they were in Afghanistan.  And with that conceptual wand, I guess we have lowered the constitutional bar to whatever it is in Afghanistan.

Source URL: http://www.thenation.com/article/165149/dangerous-defense-bill-heading-toward-obamas-desk