I take the law seriously; maybe seriously enough is a better phrase given my bygone love affair with a little blue sports car. I’m a member of several bars, including that of the U.S. Supreme Court, and I’ve raised my hand and sworn to defend and uphold the Constitution. But this is truly the summer of my discontent, where I have spent a lot of wondering if truly, “the law is an ass.” Maybe George Zimmerman’s lawyer had it right when he started the trial by cracking jokes. Maybe the system is one big joke.
Look at what is being passed off as justice this summer:
George Zimmerman was let off by a jury even as one juror is on record as saying she felt that he was guilty, while another — she of the now dead book deal — fully acknowledges that he went “beyond what he should have done,” because he “wanted to catch these people.” (italics mine) How does it happen that someone concludes that a man who took a human life is guilty only of bad judgement? Welcome to the the very scary — never more than when it rears its head in a criminal court — world of privilege. What do I mean by privilege? We could be here for quite a while. Privilege is a status that you enjoy that enables you to do things that others in circumstances similar to yours can’t. Privilege can be based on race, or perceived race , status, sex, religion or a variety of other factors. As I talked about in my first post, privilege is what gave the woman who heckled the First Lady the notion that it was ok to do that.
Privilege can also assert itself in law: witness the laws of apartheid, or Jim Crow. Now that that legally enshrined privilege is largely a thing of the past, privilege can be more difficult to see. A friend has described it as the water the fish swims in, such that the fish is largely unaware of its existence even as it is one with it. Sometimes instantly accorded, privilege can be accompanied by the invocation of a code.
Two Zimmerman related examples suffice. To any people of color reading this: have you ever been stopped by a cop and: a) avoided directly answering his/her question, or b) told him/her that you have a gun in the glove compartment even if you were carrying it legally. No? Me neither. Because we’ve been killed for infractions much more minor than that, say minding our business while walking home with a can of iced tea and a bag of skittles. But then, none of us belongs to the George Zimmerman club. Stopped for speeding last week, Zimmerman tells the cop he has a gun in his glove compartment, won’t tell the cop where he’s going and when queried, says, “you didn’t see my name?” Having literally gotten away with murder, Zimmerman tells the cop he has a gun, and succeeds in not only not having to tell the cop where he’s going, but doesn’t even get a ticket. This is privilege on parade. Behaving as if you’re untouchable and having law enforcement go along with it. “You didn’t see my name,” is a pretty in your face invocation of privilege. But it doesn’t always work, even when it should. Note this story of a 3-star police chief in New York City, the city’s highest ranking African-American who, while sitting in an unmarked police car, though wearing NYPD i.d., is not accorded privilege when he says, “don’t you know who I am?,” almost identical to what Zimmerman said. Instead, they order him from the car with their weapons drawn, and question the validity of his i.d. Though the black cop has the greater indicia of status or privilege in this set of examples, Zimmerman, who some have pointed out is Hispanic, is characterized by the cop who stops him as “white” when he radios in to check his i.d. And who gets the deference and club membership? Not the 3-star African American NYPD police chief. It also bears pointing out, given all the recent attention to the Marissa Alexander case, that women of color who defend themselves, stand their ground, or engage in similar acts reserved for the privileged, are dealt with very harshly by the system.
In the second Zimmerman example, one of his lawyers subtly threatens the judge with reversal (i.e. appealing to a higher court to have the verdict reversed) if she does not go along with his approach to the jury instructions. The judge then agrees with the defense and thus, in one writer’s view, the “jurors were told only about the parts of Florida self-defense law that benefited [Zimmerman], without knowing anything about the most relevant potential limitation.” This both explains why the jurors who felt Zimmerman to be guilty could not find any grounds on which to find him so, and defines the essence of privilege. Defense counsel had basically bullied the judge into ruling their way. The temerity, or chutzpah, if you will, to tell a judge she should see things your way or be reversed reeks of privilege. In this case, it’s privilege heaped upon privilege: George Zimmerman’s retired judge father (1) both knew who to hire (2), and the means to do so (3). Three strikes and you’re “not guilty.”
Elsewhere in the valley called “miscarriage of justice,” is the Baby Veronica story. Child custody cases rarely end up in the Supreme Court, unless they involve questions of federal (or international) law, in this case the Indian Child Welfare Act (ICWA) or unless one of the key figures is represented by someone with connections to the Chief Justice. But, I’ve gotten ahead of the story. At the center of this story is Dusten Brown, an Iraq war veteran, and member of the Cherokee Nation who has never stopped fighting for custody of his daughter, Veronica. Brown was engaged to Veronica’s mother when she discovered she was pregnant. He offered to marry and support the mother, Christy Maldonado, but she broke off the engagement and would not respond to his texts or calls. When Veronica was 4 mos. old, and Dusten was on the verge of shipping out for Iraq, he learned of Maldonado’s plans to give his daughter up for adoption. She had neither consulted him, nor gotten his permission. She had asked him to give up custody, and he had reluctantly done so, thinking that she would be raising their daughter. Dusten tells his story here.
If this country has a dark history involving peoples of African descent and slavery and Jim Crow, it has an equally cruel and destructive history where Native Americans are concerned. The history involves forcibly removing and resettling Native Americans from their land largely in the name of “progress.” The history also involves trying to destroy Native peoples and culture by removing Native children (often forcibly) from their homes and families, and sending them to boarding schools. The idea was to divest the Native children of their language, their culture. Abuse was rampant. An Army officer described the goal this way: “kill the Indian in them, and save the man.” Removal of Native Americans from their land, and their children from their homes was every bit as violent and rapacious an exercise of privilege as slavery and Jim Crow. It was as a direct result of this history that the U.S. Congress passed ICWA in 1978. It sets out federal requirements that govern state adoptions involving children who are, or are eligible to be members of federally recognized tribes.
Though the attorneys for the S.C. couple that wanted to adopt Veronica filed initial papers within days of her birth, Veronica’s father was not served with papers for 4 months, just before he deployed to Iraq. Over two years, three successive courts ruled in Dusten Brown’s favor. After losing in the S. Carolina Supreme Court, the prospective parents — many articles I’ve read suggest that the adoption had not been finalized, though Veronica did live with them for some time — so the use of adoptive parents is inappropriate, in my mind– took the case to the U.S. Supreme Court.
This is where we hit the left turn from Albuquerque. By the time the case gets to the S. Court, Veronica — by virtue of the 3 court rulings in his favor — is living with her father, stepmother and older sister. Leaving the law aside for a moment, it’s hard for me to understand why the prospective parents, with 3 losses under their belt and having lost custody of Veronica, could not put a stop to things. Surely, it is not in her best interest to be taken from not only her father, but the family, including her sister that she’s been living with for the better part of 2 years? This is when you start to believe that this case must be about something else … My guess is that the something else is the rights of adoptive families, esp. since Chief Justice Roberts, who has a very problematic role in all this, is himself an adoptive parent. Of course I support adoption in general, but there appear to be several problematic things at work here. It comes back to what I was talking about in the Zimmerman context: privilege. Though ICWA exists to prevent Native children from being adopted away from their Native families, the Supreme Court disregarded it, and held part of it invalid. In so doing, it opined about how Indian Veronica was and found her to be 1.2% Native. Not only is that not the issue, it wasn’t for them to opine about her whether she was a member of the Cherokee Nation or not. The Constitution recognizes many Native nations, including Cherokee as “domestic dependent sovereigns.” Thus, it was up to them to make a determination as to whether Veronica was a member, and they decided she was. End of story. Unless someone decides such facts are inconvenient to the way they wish to decide a case. in which instance they proceed as they like, disregarding simultaneously, the sovereignty of the Cherokee nation and the reasons that Congress created ICWA to begin with.
Justice Sotomayor makes clear how out of line the majority is in this part of her dissent:
“[T]he majority openly professes its aversion to Congress’ explicitly stated purpose in enacting the statute. The majority expresses concern that reading the Act to mean what it says will make it more difficult to place Indian children in adoptive homes, see ante, at 14, 16, but the Congress that enacted the statute announced its intent to stop “an alarmingly high percentage of Indian families [from being] broken up” by, among other things, a trend of “plac[ing] [Indian children] in non-Indian . . . adoptive homes.” 25 U. S. C. §1901(4). Policy disagreement with Congress’ judgment is not a valid reason for this Court to distort the provisions of the Act.”
Thus, despite the fact that the U.S. Congress, recognizing the terrible and destructive history of this country in adopting Native children away from their families, passed a law to protect Native children, and prevent this from happening, Native people have no rights that the U.S. Supreme Court must respect. Or, at least, that’s my take away. It’s also worth pointing out that Chief Justice Roberts attended the wedding of the birth mother’s lawyer: she’s married to one of his former clerks. This is what I refer to as “privilege on parade.”
The battle continues: A S. Carolina court has moved to finalize the adoption, but has not ordered a hearing as to what’s in the best interest of the child, despite the fact that this is required by ICWA. Dusten Brown petitioned the Supreme Court to put the enforcement of the S. Carolina court order on hold until such a hearing could be held, and Chief Justice Roberts, who hears the emergency petitions from the 4th Circuit of which SC is a part, turned the petition down. Again, methinks this case has long been about something other than the best interests of Baby Veronica. The case will now move to Oklahoma, where Veronica lives, and the courts there will have to determine how best to enforce the order issued in S.C. With luck, they will see wisdom in determining Veronica’s best interests before proceeding.
Cheers To the many responsible for keeping the heat on in FL, until their legislature agreed to review its Stand Your Ground law. While reviewing the SYG law is a good start, things should not end there as a number of recent articles found here and here suggest that black men of all ages have as much to fear from FL law enforcement as from gun wielding citizens.
Jeers Cong. Reid Ribble of WI. At a House hearing on poverty last week, Ribble took on a Catholic nun (mentioned in a previous post of mine) who was speaking about the positive role that federal programs like SNAP and Head Start play in the lives of people struggling to make ends meet. RIbble asked, “What is the church doing wrong that they have to come to the government to get so much help?”
Jeers To the Ocean City Police Dept. What transpired initially is the subject of dispute, however, an altercation occurred between the police and some beachgoers — their names sound African to me. They could be from anywhere really, because what the police saw was skin color not ethnicity. At some point, the police threw a pregnant woman to ground and held her there. Ultimately, she had to have an emergency c-section. Seriously?
Cheers I highly recommend the article, The Fight for Black Men, by former White House advisor Joshua DuBois. It’s wide-ranging, and he interviews many thoughtful people for the article, none more so than Ta-Nehisi Coates, a senior editor at the Atlantic Monthly who says, “If there’s one thing that’s missing in our country, it’s an acknowledgment of the broad humanity of black folks. Racism—and anti-black racism in particular—is the belief that there’s something wrong with black people … and I mean something in our bones.”