The American Justice System is Flat-Out Broken: Part 2

I might not be so down on the American justice system if the only evidence of its disrepair was Michelle Alexander's work (though Lord knows, her indictment is bad enough).  I've also been a juror.

I guess few people like jury service, but people do it because we feel it is our duty as citizens.  I mainly do it because people died for the right of people of color to have a "jury of their peers."  It doesn't make much sense to me to fight for rights that go unused.

But instead of giving me a bird's eye view of what is supposed to be the crown jewel of the American justice system, my jury service has contributed to my conviction that the justice system is broken.

When I first began to get an inkling that things weren't working I got angry at the Philadelphia Police Department.  A young man was accused of raping a young black girl on her way to school.  I don't remember the details of the case very well, but what astonished me was that there really wasn't any evidence that this particular young man had committed the crime.  As a black womanist/feminist, I was more than ready to hold someone accountable for what had been done to this girl.  But the prosecution simply hadn't gathered any evidence that connected the defendant to the crime.  The not-guilty verdict seemed to be the only verdict we could render, given the circumstances. At the short meeting with the prosecutor, defense attorney, and judge, I asked why they hadn't presented more evidence.  The only answer I got was that the police were overextended and couldn't do any better.

I thought of that trial again when I read the Village Voice interview with Jim DeRogatis about his detailed investigation of R. Kelly, the sexual predator/ singer who raped and exploited loads of girls over the course of his music career.  As DeRogatis put it, "The saddest fact I've learned is: Nobody matters less to our society than young black women."  That was exactly how I felt at the end of the trial:  the police didn't do their jobs, and it was probably because black girls don't really matter.  Added to that is the new normal of "guilty until proven innocent"--and you have a victim no one cares about, and a defendant who doesn't really need any evidence against him because he's guilty until proven innocent.  I think the prosecution was probably surprised at the not-guilty verdict.

I thought that trial was an aberration.  Surely the police didn't routinely do half-ass jobs.  But the trial I sat on this Fall really crystallized my view that the interaction between poor police work, jury deliberations, and class/cultural/race prejudice has really corrupted American justice.

This trial was surreal. There were more than a few moments when I felt I was a member of the studio audience for the Jerry Springer Show.  It included two black women in love with the same man, stalking, high-speed car chases down I-95, and a gunshot wound that almost killed the guy who alternated living with his two ladies.  As if that weren't enough, it also featured text messages from the female defendant to her lover--texts which when read aloud by a police officer caused everyone in the entire courtroom to bow our heads in shame and shock.

I took notes at this trial.  I listened carefully to all the testimony.  The main thing I wanted to hear about was the physical evidence that connected the shooter to the victim.  And there wasn't any.  No gunshot residue tests conducted on the defendant.  No gun.  I thought it would be easy to get rid of a gun, but since they arrested the guy soon after the shooting, gunshot residue should have still been on him.

But the police didn't do a gunshot residue test.  They had nothing to say about the gun except that they didn't have it.  I kept waiting for the defendant's lawyers (public defender) to bring up the question of physical evidence.  Neither he nor the prosecutor ever raised the issue.  And then I realized that we were once again in the province of "guilty until proven innocent."

The jury experience was also surreal.  The defendant's nephew testified that his uncle was at his birthday party at the time of the shooting.  The jury largely disregarded this testimony because many jurors "didn't believe that there would be a birthday party with no pictures."  They didn't believe that this young, unemployed young man didn't have a cell phone. I considered many of their observations as shot through with class and cultural prejudice.

I focused on the lack of physical evidence and what I knew to be an emerging consensus that eyewitness identifications are, according to the American Bar Association, unreliable, especially when victims are under psychological stress--as when a gun is pointing at them (people tend to look at the gun.).  When I brought this up in our deliberations, and cited the New Jersey Supreme Court new guidance on eyewitness testimony, several of my fellow jurors said that I was "biased."  I couldn't convince them that knowledge is not the same as bias.

I felt the pressure of the group to join in what they considered a "majority" opinion. I caught their looks.  The tension was enormous.  I sadly explained that I would have liked to vote with them and get it over with, just to relieve the pressure, but I honestly didn't feel I could live with myself if I did. I began doodling in my notebook, thinking all the while about the jurors in the Trayvon Martin trial, and how difficult it is to withstand the pressure of a group. And when the group is animated by a set of unvoiced beliefs that they all share--like guilty until proven innocent--you're not just someone who disagrees.  You're an outcast.  But I stood my ground, and ended up hanging the jury.

A jury is nothing more than a focus group of American citizens, bound together by a set of rules (jury instructions) that are supposed to guide decision-making.  But cultural and class-based beliefs are also deeply embedded in jury deliberations, and I now believe that these beliefs play just as important a role as jury instructions. Worse, the underlying beliefs of jurors are invisible, even to them. I left the courtroom that day wondering how many people are in prison today because they were caught up in our "guilty until proven innocent" system.

The American Justice System is Flat-Out Broken

We are accustomed to thinking of signs and signposts as pointing us somewhere we want to go, but they are also useful in directing us away from what we want to avoid.  There was a time when I believed that most of the basic tenets of the American justice system were admirable. But the closer you look, the uglier it gets. Note to world:  whatever America has to give the world, it certainly isn't its criminal justice system.

I did have a head start on my disillusionment.  All of the statutes, court decisions, institutions, and practices that supported the growth of slavery and then Jim Crow were evidence enough that a "justice" system didn't necessarily have to have anything to do with justice.  So I got that.

But The New Jim Crow, my experiences as a juror, mountains of research that serve to undermine the logic and operation of key components of the justice system, and the outcomes of several recent celebrated cases have led me to a disturbing conclusion:  the justice system doesn't just have a few flaws.  It is flat-out broken.  Kaput.  Beyond repair. It just isn't acceptable to call something a "justice system" that only works for white and/or rich people.  We need to start over.

Michelle Alexander's  The New Jim Crow performs the remarkable feat of identifying exactly when and how America got on the path to the mass incarceration society we've now become.  If I were teaching high school or college, this book would be required reading.  But she also identifies threads that have now unraveled to a point where even the blind can see the outrageous consequences.

Take, for example, stop and frisk. Alexander shows that the country returned to the philosophy that "people of color are guilty unless proven innocent" in 1968, with a Supreme Court ruling that arrests are justified when police have a "reasonable suspicion" that a person is likely engaged in criminal activity and is dangerous--rather than probable cause that a crime has been committed.  Over the years, it's become clear that suspicions about people of color are, well, normal. First, the police were relieved of the responsibility for identifying a probable cause for arrest.  Then, police were acquitted all across the country for shooting unarmed civilians of color.  Now, just plain citizens are considered "reasonable" when shooting anyone of color, even teenagers.

The result:  hurt and injured teens looking for help can be shot through a locked screen door;  teens out having fun can be murdered in the backseat of a car while (maybe) playing loud music; a solitary teen can be shot to death walking home from a corner store with a drink and a bag of candy.

How far is this situation, really, from  "guilty until proven innocent" ? The scene in 12 Years a Slave, when Solomon Northup was required to show the pass from his master in order to avoid arrest while on an errand, has returned with a vengeance.  If you're a person of color, pass required. 

Why "Signposts"?

In Hope and History (1990), historian Vincent Harding shared the words of a young brother, Darryl, who had gotten caught up in the drug trade in the Roxbury section of Boston, Massachusetts.When asked why Darryl's friends and associates had become "enmeshed" in the drug world, Darryl offered this observation:

"You know, doc, out on those streets it's like being on a dark, dark country road at midnight, with no moon and no lights to guide you; and you can't see any signposts at all.  So they're lost, don't know where to go, and they can be pulled down into any hole...What we need are signposts to help us find the way.  I don't mean no regular signposts.  I mean like live, human signposts, people.  People we can look at, be with, listen to.  That's what we need.  Signposts."

So in honor of Darryl, and all his brothers and sisters, I will be trying to find and lift up all the signposts I can, in hopes that we can keep at least some of them on a more righteous path.--Fasaha Traylor, 12/13/13