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Following the verdict in the George Zimmerman case, there have been a lot of nonlawyers earnestly explaining the law on the internet today. Conservatives feel vindicted; liberals see the verdict as another example of racism that still pervades our legal system - that a black young man can be shot without consequence. Without getting too deeply into the technical issues of the trial, I want to suggest a middle ground that respects the rights of criminal defendants without minimizing the harm done by racism in our society.

As a trial lawyer, I cannot be anything but glad that a criminal defendant received a zealous defense, and was judged according to the rule of law, with the burden on the state. But as a person concerned with social justice, I am still deeply distressed at the evident racism and prejudice that both incited the initial incident, and that contributed to the doubt in its adjudication.

A lot of attention has been spent on whether the defendant's conduct was motivated by racism. Recordings of his conversation with the police dispatcher, who urged him not to follow the victim, and to whom he made some fairly incriminating statements ("These punks, they always get away"), seem to suggest that it was; of course, the defense team then sought to defray this by suggesting that of course he's not racist, some of his best friends relatives are black. This all misses the point. Whether Mr. Zimmerman himself is racist should not decide the legal issues - we don't jail people for that. Though my understanding is that there's strong evidence that he followed Martin because of a perception that the latter was "a punk" and "they always get away" - racist enough, as a motive for incitement of violence. (The fact that he had black relatives hardly exonerates him on this moral charge. It's entirely possible for someone to get along fine with black people who conform to a certain ideal of white culture, but to hate and fear black folks who look more like an urban stereotype. That seems to be what Zimmerman was thinking; and that's still racism. It may be what the jury was thinking, too.)

The critical legal point is that it's not at all clear what happened in the confrontation between defendant and victim - even if Zimmerman was at fault in starting that confrontation in the first place - and under the law, unclear situations should be resolved in favor of the defense. Anyone who decries this verdict as pure racial injustice isn't paying attention. If you care about the plight of criminal defendants - which, tragically, remains an issue of racial justice - then you need to preserve the 'beyond a reasonable doubt' standard for criminal cases.

Likewise, this idea that the 'victim was on trial' is unfortunate, but not, in itself, racism. The defense has to be able to raise certain arguments, including the idea of self-defense; and that necessarily entails suggesting that the victim assaulted the accused. Rather, racism lies in the prospect that this defense was more compelling for a jury in this case than it would have been were the victim a white teenager. That's not a problem that the law can solve by itself. I think we can agree that an evidentiary rule that prohibited such a defense would not necessarily lead to a better world, more free of state oppression for defendants.

Laws prohibiting certain kinds of defenses in criminal cases are not unheard of. A comparison may be instructive: There are 'rape shield' evidence laws in sexual assault cases that prohibit the introduction of evidence of the complainant's sexual history, because "she's a slut, so it couldn't have been rape" was an over-used and inappropriate defense. But in that case, the victim is usually still alive, and testifying about what happened - not possible in a murder case. And more importantly "the victim is a slut, so it wasn't rape" is a nonsense argument; but "the victim was assaulting me, so it wasn't murder" really is not. The former argument skips a critical step. It asks us to infer something about a person's conduct in a particular case, from their general reputation or behavior. In general the rules of evidence seek to minimize that kind of inference. If the defense had been allowed to introduce evidence that the victim was a violent person in general, and so "must have" been the aggressor in this confrontation, then that would have been a more apt comparison; but just allowing them to argue that the victim had been the aggressor here in particular is perfectly appropriate (just as arguing consent in a rape trial is appropriate, if we don't ask a jury to infer consent from the victim's previous sexual history).

The other real racial injustice is that African-American defendants don't seem to be given the same benefit of the doubt that the Hispanic-white defendant here did - either by police when making arrests; by juries at trial; or the media, or because more common murder cases don't generate such attention as gets you a top-flight legal team (Zimmerman's lawyers may have come off as buffoons, but they sure weren't PDs). Again, not a problem the law can really solve, except by allocating more resources to public defense so that everyone gets a legal team ready to go to trial if necessary.

It would be mad to suggest that racism was not a prominent factor in this decision. But it would be just as mad for progressives to willingly reject the idea of rigorous defense for criminal defendants as a solution to this problem. The real solution must address people's attitudes about race and violence, not the legal response to them.

i heard that


Posted on 2013.06.19 at 00:15
Tags: , ,
Keiko: -_-; ..i think she's taking up residence in the litter box

Me: ... that sounds bad long-term, but isn't locking oneself in the bathroom a normal response to stress?

Me: (Aside: #textmessagestosomeoneinthesamehouse )

Keiko: good point :) ok, nevermind she crawled back out. #iamlazy

Me: #hashtagsinreallife #iweepforourcivilization

cookie bunny

We can haz kitteh

Posted on 2013.06.18 at 23:19
Tags: ,
Katherine and Kevin have, or had, two cats. Both were adopted from the Humane Society. One, Cleo, was there because it seems that someone tried to drown her and her littermates in a vat of oil when she was a kitten; only she survived. Cleo and Athena were adopted at the same time and initially got along, but lately, it seems that Cleo's kitty-PTSD has gotten worse or something, and has started beating up Athena. So, the humans need to relocate Athena. And Eavan and Keiko have wanted a cat forever, and Athena really is the prettiest ever. So here she is:Collapse )

I hesitate to call her Ours, when they so clearly didn't want to give her up, but as they said, it's unlikely that Cleo will get any less kitty-PTSD, so now we haz kitteh. I think I'm already sneezing.

Some time last night, I woke up from some dream, with this horrible feeling of fear and regret. That feeling stuck with me when I got up later, though I'm fairly sure that whatever I was dreaming or thinking about wasn't real. I can't remember what it was.

it's been a bad day

Changing planes

Posted on 2013.05.23 at 21:53
I have been waiting in the Denver airport for about nine hours, now.

blah blah

We're number seven! We're number seven!

Posted on 2013.04.12 at 12:28
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A new study by a Pepperdine law professor ranked the state Bar exams from hardest to easiest, by measuring pass rates and controlling for the takers' LSAT scores. As of 2010-11, the hardest was California's (unsurprisingly), followed by Arkansas' (WTF?). Oregon's was the seventh-hardest. (Alaska, Delaware, and DC were not included in the study for insufficient data.) So take that for what it's worth.

The most obvious emotional implication to people who have taken these exams is that we get to feel smug about having passed particularly hard ones. The larger social context is that state Bar organizations are increasingly seeking to tighten admission requirements, in response to proliferating unemployment among new attorneys. So we can expect a lot of Bar exams to continue to get harder across the board. (This also implies that the profession will get older, over time, as fewer new lawyers can join the older ones already admitted under easier terms. Not sure if that's a good thing.)

The easiest Bar exam, apparently, was South Dakota's. So you can feel free to sass any South Dakota lawyers you run into.

So on the weekend of the 20th, I'll be driving with a friend down to northern California to help pick up some things left behind when she moved. The weather has improved immensely in Portland of late, but I still have traumatic memories of a road trip to California from Portland ten years ago - in the height of summer, natch - when we got stuck on a mountain pass in the snow for four hours. Given that, I'd like to plan a route, if possible, that goes around the highest mountains, rather than through them. Can anyone suggest a more weather-safe course for getting from Oregon to California?

I carry a box of cigarettes in my messenger bag. I didn't buy them; I just found them around somewhere. I don't smoke, of course. I keep them to give to people who ask me for them - usually homeless people downtown.

Tonight I did this when leaving a friends' apartment, with my friend Marcus. He was surprisingly offended at this. He contended that this is morally problematic, because it encourages addiction and does harm to the person indulging in the habit. My counterargument is that it constitutes respect for individual autonomy to allow people to make that choice for themselves, that most people know the long-term health risks associated with smoking, and that they are more concerned with short-term gratification - and the pleasant acknowledgment of their humanity that doesn't try to give a paternalistic lecture. Marcus said that in that case, one might as well carry around syringes of heroin for people who ask. I say that there's a balancing test between autonomy and harm, and you have to draw a line. This brings up lots of other issues, like Marcus's love of fast food and my habit of keeping a box of granola bars in my car to give to homeless people at stop lights, and the legalization of different type of drugs... but that's the essence of it. To what extent do we follow the principle of 'doing no harm', even as applied to making choices for others; and to what extent do we follow a principle of individual freedom, even when it leads to bad results? As individuals, as friends, as policymakers? I would argue that 'freedom' almost always means the freedom to do something of which someone else earnestly disapproves; but of course, freedom is not absolute.

Why not leave your own answer in the comments!

bottled life

Quick survey

Posted on 2013.03.02 at 15:40
Who still reads this site?

Went biking for the first time this year. It's wonderful and liberating, as always. But the air was bitter chill, especially as the sun began to sink, and the sky turned from grey to slate. It felt like autumn, somehow. The air smelled like burning leaves and cold, and the dark clouds low under the sky threatened rain.

I know it's not true, and spring is on its way - one of my last springs, as a young (or younger) person. Right now, hope feels far away, and it's hard to shake the conviction that the present time, without security or conviction, will last indefinitely.

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