Sometimes the news seems totally disjointed and anarchic, a torrent of disconnected events. Other times there is a gestalt to it that arrives with lightning bolt-like clarity.
Last week was one of the latter.
The centerpiece of that clarity was a trio of shotgun blasts, fired on a street in south Georgia, on a Sunday afternoon.
THE GALLANT SOUTH
On Sunday February 23, two white men armed with a shotgun and a .357 Magnum pistol got in a pickup truck and followed an unarmed 25-year-old black man named Ahmaud Arbery while he was jogging down a suburban street in Brunswick, Georgia. They accosted him and shot him dead while a third white man, a friend of theirs, filmed the incident.
No charges were filed for two months, until public outcry and the emergence of that video forced it.
I spent my last two years of high school in that part of Georgia, near the Florida state line, and quite a bit of time in other parts of Georgia too. When you hear the phrase “the Deep South,” this is it. I can assure you that, in the late ‘70s and early ‘80s at least, the spirit of the Confederacy was alive and well there. I don’t imagine it has become a model of progressive race relations in the intervening years.
But at the risk of stating the obvious, that a couple rednecks would commit this hate crime is one thing; it’s quite another for the mechanisms of government to abet and excuse it.
In a letter to Glynn County police directing them to make no arrests, the elected District Attorney for the Waycross Judicial Circuit, George Barnhill, wrote that he thought the shooting was justified, and that the killers had committed no crime under Georgia’s citizen’s arrest law. In Barnhill’s view, Gregory McMichael, 64, and his son, Travis McMichael, 34, had “solid firsthand probable cause” to chase Mr. Arbery, because they suspected him of being involved in a recent series of break-ins.
What was their “solid firsthand probable cause”?
They thought he looked like the alleged trespasser.
(“No such string of break-ins was ever reported to police in more than seven weeks preceding the shooting, Glynn County police Lt. Cheri Bashlor told CNN.”)
But the rote notion that Ahmaud Arbery was a criminal is par for the course in these cases. From the Scottsboro Boys to Michael Brown, such violent race-based vigilantism is often predicated on the claim that blacks are dangerous outlaws from whom white people must defend themselves…and since “the system” won’t do it, whitey often has to take matters into his own hands.
That irony is neck deep. Ask the African-American community what they think of the idea that the criminal justice system is rigged in their favor.
Similarly, the habit of white people, especially those with a credible racist streak, to confuse one black person for another is lethally well established. But even if Ahmaud Arbery had been a burglar (which I am positing only for the sake of argument), and even if he was fleeing the scene of a robbery (which he wasn’t, remotely) what possessed these two crackers to take it upon themselves to personally accost him with a pair of firearms, creating a dangerous situation where none existed or needed to?
I’ll tell you what possessed them to do that.
These guys were hunting.
CRIME AND PUNISHMENT
Barnhill was not the first prosecutor on the case. The original one, the DA for the Brunswick Judicial Circuit, Jackie Johnson, recused herself because of a conflict of interest: Gregory McMichael had been an investigator in her office before he retired. (He had also worked for the Glynn County police department from 1982 to 1989.) Barnhill was then forced to follow suit, because his son had worked with McMichael in that same office, and was still employed there.
The third prosecutor, District Attorney Tom Durden of the Atlantic Judicial Circuit, was based in the nearby town of Hinesville, where I went to high school. He asked to be removed from the case. The Georgia Attorney General has now assigned a fourth prosecutor, Joyette M. Holmes, the DA for Cobb County, who is a black woman, for what it’s worth. (The previous three would-be prosecutors were all white.)
Lest we forget, this is a state governed by inveterate election robber and minority-vote-suppressor Brian Kemp, a Republican of course, who seems to be permanently channeling Strother Martin in Cool Hand Luke, and who ran an allegedly humorous campaign ad in which he pointed a shotgun at a teenage boy who wanted to date his daughter. (Hilarious!) These days, Kemp seems most focused on getting Georgia’s tattoo parlors and bowling alleys open to hasten the spread of the coronavirus.
I don’t know about you, but when I am barehanded and approach two men brandishing a shotgun and a .357 Magnum, I don’t usually pick a fight.
The video shows that Arbery was indeed shot in a struggle over the shotgun, but the self-defense claim is specious. The killers initiated the confrontation, they were the ones who were armed when their victim wasn’t, and the other guy wound up dead. Sound like self-defense to you?
The McMichaels also seem poised to claim that Arbery himself accidentally fired the second of three shots during the struggle, two to the chest and one that hit him in the hand. As if that matters. And while we can correctly say that they pursued Arbery—stalked might be a better term—let’s not fall into their trap of calling it “hot pursuit,” as some sloppy news reports have. That implies the legitimate chase of a perpetrator fleeing the scene of the crime, not a defenseless jogger chased by armed men in a pickup truck….and lest we forget, at the risk of repeating myself, these guys were not law enforcement officers.
There is some small solace in the fact that their claim doesn’t figure to hold up in court. According to Michael J. Moore, formerly a US attorney in Georgia who reviewed the video of the murder:
…..the McMichaels appeared to be the aggressors in the confrontation, and such aggressors were not justified in using force under Georgia’s self-defense laws. “The law does not allow a group of people to form an armed posse and chase down an unarmed person who they believe might have possibly been the perpetrator of a past crime.”
As reported in USA Today, Sarah Gerwig-Moore, associate dean for academic affairs at Mercer University School of Law, adds:
……Georgia law does not allow for a self-defense defense when the person carrying out the shooting initiated the encounter. “A struggle over the gun does not establish self-defense,” Gerwig-Moore said. The McMichaels brought the guns into the incident, and she said they initiated the encounter by first approaching Arbery with the firearms. “He tried to disarm them really because that was his only hope of survival.”
POLICE ON MY BACK
It is telling that not one but two District Attorneys had to recuse themselves from the case because of their affiliations with one of the accused. That tells you all you need to know about how deeply “law enforcement” is intertwined with both racist vigilantism and institutionalized oppression and violence toward black people. But it has historically always been so.
During and after Reconstruction and into Jim Crow, it was commonplace in the South for members of the Klan to put on badges and become sheriffs, allowing them to carry out their terrorism under the imprimatur of the law. (Today, just pointing that out is likely to raise angry hackles.) But it isn’t just a matter of the past. The FBI continues to monitor the alarming presence of white supremacists in law enforcement.
The civil rights lawyer and anti-death penalty advocate Bryan Stephenson of the Equal Justice Initiative has written at length about the direct line from slavery to lynching to capital punishment. Violent white vigilantism and the codified, institutional oppression of black people have always gone hand in glove in America. (See also Michelle Alexander and The New Jim Crow.)
Anecdotally, I can tell you that I’ve heard appalling racism from cops and even prosecutors, firsthand. Are those just “bad apple” exceptions, rather than indicative of a systemic problem? See above. Even if that were so, how much better does that make it?
But the personal racism of individual members of the criminal justice system pales in comparison to the overall weaponization of that system against people of color, even as those examples reflect and perpetuate it on a granular level.
In a bitter irony, Mr. Arbery was killed three days before the eighth anniversary of the murder of Trayvon Martin, whose killer also claimed self-defense and was also not initially charged. When he finally was indicted for murder, George Zimmerman was let off scot free by a Florida jury, and by the DOJ which declined to press civil rights charges against him. That howling travesty of justice, of course, that helped launch the Black Lives Matter movement, which has itself become the target of outrageous vitriol from right wing Americans, to include prominent members of the GOP and of course its leader, the President of the United States.
So Ahmaud Arbery becomes yet another in a grim parade of African-Americans—mostly but not exclusively male—who have been violently murdered by white assailants, often directly by or with the assistance of members of the criminal justice system that is supposed to protect us, and had justice either denied or delayed by that same system.
But it gets worse. For let us now take a look at how the other half lives.
News flash: the law treats white people differently, especially rich, connected white people. That phenomenon was on hideous display this week at the highest levels of American public life.
The understandable, all-consuming focus on the coronavirus provided cover for Bill “The Institutionalist” Barr to continue to act as a mob consigliere to the Trump crime family, issuing a de facto pardon for Mike Flynn, even though Flynn twice pleaded guilty to lying to the FBI. No legal scholar can cite a previous case where a US Attorney General intervened to void the conviction of a defendant like that.
How excited is Roger Stone right now?
Asked by CBS’s Norah O’Donnell how he thought history would view his actions, Barr even openly snickered that “History is written by the winners.”
I’m not so sure Bill Barr should be so confident about how history is going to remember him and his pals.
As Adam Stein of The Daily Beast tweeted, “The head of the American justice system now saying publicly that there is no good or bad except what the strongest want. The definition of autocracy.” In other words, Barr and Trump and their band of pirates are no longer even pretending to respect the rule of law.
Thousands of former DOJ officials howled in protest, calling for Barr to resign, reprising the outrage of a few months ago when he similarly intervened to reduce Stone’s sentence. As of this writing, the judge in the Flynn case, Emmet G. Sullivan, has expressed such concern that he has delayed the implementation of Barr’s order and appointed a retired federal judge, John Gleeson, to look into the matter—a glimmer of hope that the judiciary is resisting Barr’s effort to eviscerate it, cold comfort though that is.
Another well-heeled white dude getting a break was Paul Manafort, who last week was given early release from prison and remanded to house arrest due to the covid pandemic. It’s a different story if you’re an enemy of the president, like his fixer-turned-accuser Michael Cohen, who was also supposed to be released from prison early because of the pandemic, but for some reason is still in. Weird, right?
The really worrying thing, as former FBI agent and Yale Law School professor Asha Rangappa writes, is that Barr is behaving so brazenly because he has inside information that makes him confident that Trump and the GOP won’t pay the price at the ballot box in November, or from Congress, in—oh, I don’t know—an impeachment:
Barr believes he’ll be on the winning side because he is creating a space where Trump can get foreign election assistance (voluntarily or involuntarily given); the FBI can’t investigate him or others for it and DOJ can’t charge anyone who helps; people who witness it and try to blow the whistle get buried; Congress (and therefore voters) remain in the dark; and allies who might step up to raise the alarm will have their intel leaked and sources blown.
Last week Franklin Foer had a terrifying piece about Russian election interference and the GOP’s unwillingness to stop it. Which is ironic, since the Flynn decision is part of an ongoing, brazen campaign by the White House to erase the public record of Moscow’s assistance in getting Trump elected the last time.
As part of that same effort, last week the DOJ was also in court arguing that the administration should not have to turn over to Congress grand jury material related to the Mueller probe, and before the Supreme Court arguing that neither the Manhattan DA Cyrus Vance nor even Congress have a right to see Trump’s tax records, not even in pursuit (or is it hot pursuit?) of a criminal investigation.
How the hyperpolarized Supreme Court will rule is anyone’s guess, even though it has twice before, under Nixon and Clinton, ruled unanimously against such outrageous claims of presidential immunity, as Jeffrey Toobin eloquently wrote in the New Yorker. We know that John Roberts is said to be deeply concerned about the legacy of the Court that bears his name. He ought to be. The Court’s decisions in the Trump era, and Chief Justice Roberts’ own conduct during the impeachment trial, don’t exactly bode well for his reputation as a dispassionate home plate umpire. If the Court hands down a 5-4 defense of Trump, its already hemorrhaging credibility will take another massive hit, as will the rule of law in this once proud country.
Not exactly a criminal justice matter, but also in the While You Were Sleeping Department, the administration and its Republican handmaidens in the Senate are currently trying to ram through the confirmation of Trump’s DNI nominee, Rep. John Ratcliffe (R-Tex.), the same wildly unqualified partisan attack dog who got his nomination slapped down a few months ago, before we were all preoccupied with the prospect of dying in a global plague.
Johnny Rat will make a fitting successor to Richard Grenell, the Internet troll who is now the acting Director of National Intelligence. Last week he was in front of the Senate, Barr-like, swearing up and down that he would uphold the law and stand up to Trump. “Trump’s top spy pick vows he won’t politicize intelligence” as the AP headline put it. Expect to see those words boomerang back in a few months when Ratcliffe eviscerates the Intelligence Community and turns its rancid remains into another arm of the Trump kakistocracy.
So the system really works for the likes of Trump, Manafort, and Flynn, and may yet work for Greg and Travis McMichaels.
For Ahmaud Arbery, not so much.
THE RACIAL CONTRACT
Notwithstanding the tragically naive delusion that the election of Barack Obama marked the dawn of a “post-racial society,” the irrational hate that laid Ahmaud Arbery out in a pool of blood on the black macadam of a suburban Georgia street has always been with us, and always will be until we reckon with it.
But between, say, 1968 and 2015, that hate had to hide its face in shame in polite society. No more.
Now we now live under a government whose leader openly cheers and supports these troglodytes, who praises the “very fine people” wearing swastikas and waving Confederate battle flags in Charlottesville, who talks of the “very responsible people” in body armor and carrying tricked-out AR-15s storming the offices of Democratic governors, demanding the right to die from covid-19. (I guess Trump knows from responsibility, even as he declines to accept any.)
These same people find it outrageous that Colin Kaepernick had the gall to take a knee in peaceful, silent protest, and what the hell was he so upset about anyway?
In The Atlantic, Adam Serwer writes blisteringly of the implicit “racial contract” that defines how American culture operates:
A 12-year-old with a toy gun is a dangerous threat who must be met with lethal force; armed militias drawing beads on federal agents are heroes of liberty. Struggling white farmers in Iowa taking billions in federal assistance are hardworking Americans down on their luck; struggling single parents in cities using food stamps are welfare queens. Black Americans struggling in the cocaine epidemic are a “bio-underclass” created by a pathological culture; white Americans struggling with opioid addiction are a national tragedy. Poor European immigrants who flocked to an America with virtually no immigration restrictions came “the right way”; poor Central American immigrants evading a baroque and unforgiving system are gang members and terrorists.
And it doesn’t matter who you are or how high in public life you are; no person of color is exempt from this dynamic. On the contrary, in some ways.
As if to underscore the resilience of racism in America, Mitch McConnell decided to throw a hissy fit over the fact that last week Barack Obama criticized Trump’s handling of the pandemic in a private phone call. “I think President Obama should have kept his mouth shut,” complained Kentucky’s finest. “I think it’s a little bit classless, frankly, to critique an administration that comes after you.”
You could almost feel Mitch yearning to use the word “uppity.”
Maybe no living black American has had to endure more verbal abuse and character assassination than Obama, and done it with more grace and aplomb. But at this point I am ready for Luther, his anger translator. New York magazine’s Jonathan Chait said it all with his headline, “Mitch McConnell Upset at ‘Classless,’ Norm-Breaking President.”
Serwer’s piece in the Atlantic is titled, “The Coronavirus Was an Emergency Until Trump Found Out Who Was Dying.” Its gist is that Trump’s new strategy of declaring victory over the coronavirus and pretending everything is fine is motivated in part by statistics showing that the virus is disproportionately affecting people of color.
In other words, while Trump is more than happy to use the mechanisms of governance to protect his criminal enterprises and cover up his corruption and reward his accomplices, he has no interest in using it to help the American people, especially the black and brown ones.
This is not just shameful policy that ought to make us cluck our tongues as we change the channel; it’s a crime against humanity. Gregg Gonsalves, an assistant professor at the Yale School of Public Health and co-director of its Global Health Justice Partnership, tweeted:
How many people will die this summer, before Election Day? What proportion of the deaths will be among African-Americans, Latinos, other people of color? This is getting awfully close to genocide by default. What else do you call mass death by public policy?
And I am being serious here: What is happening in the US is purposeful, considered negligence, omission, failure to act by our leaders. Can they be held responsible under international law?
So, what does it mean to let thousands die by negligence, omission, failure to act, in a legal sense under international law?
Attention International Criminal Court.
There is always the self-flattering temptation for a disconnected public to rationalize an event like Ahmaud Arbery’s murder as an aberration, tragic though it is. But when it keeps happening over and over and over again, it can’t reasonably be denied that it is anything but an anomaly, especially in the context of the brazen white privilege, and a deliberate policy of mass murder by laissez faire criminal negligence at the highest levels of our national so-called leadership.
It is who we are. This is our strange and bitter crop.
Photo courtesy of Marcus Arbery
“Strange Fruit” by Abe Meeropol (aka Lewis Allen)
Thank you Genie Smith for the article about Greg Gonsalves