Patterico's Pontifications


David French Declares Woman Innocent Who May or May Not Be Innocent

Filed under: General — Patterico @ 7:59 am

David French states this on Twitter:

Below his tweet, you can read the outraged cries from people angry about the supposedly clear injustice here, based on the language of his tweet. Imprisoned, baby ripped away, after acting in self-defense? That’s racism! One person after another states that obviously she was convicted because she was black; the system is evil; nobody in the system cares about justice, etc. etc. etc. Here’s one example among many:

Here’s the thing: French has loaded the dice in his tweet by declaring, as a matter of established fact, that the woman acted in self-defense. But if you read his actual article (which is interesting and mostly well done, until the end), you’ll see that this “fact” is not clearly the case at all, but instead is very much in dispute:

What do I mean? Hang with me for a moment, because this case is a bit complicated. At its heart is a dispute between Siwatu-Salama Ra, an African-American concealed-carry permit holder from Detroit, and a woman named Channel Harvey. Ra was put on trial for assault with a dangerous weapon and possessing a firearm while committing a felony after she brandished her unloaded pistol at Harvey during a heated confrontation outside Ra’s mother’s house.

The facts are hotly disputed, but Ra claimed that during the course of an argument, Harvey backed her car into into Ra’s vehicle — while Ra’s two-year-old daughter was inside, playing. Ra claims she grabbed her daughter out of the car, then grabbed her unloaded gun, “pointed the gun at Harvey’s car” and then again demanded that Harvey leave. Harvey testified that Ra was the aggressor, and that she hit Ra’s car on accident only after Ra pointed the gun at her. The jury apparently believed Harvey’s version of events, and Ra received a two-year prison sentence.

The case was immediately controversial, with critics of the verdict claiming that the case represented “yet another instance of a black gun owner, with the permits to legally carry, defending themselves against violence — and getting punished for it.”

(My emphasis.)

The case may represent that — and French clearly thinks it does — or it may represent someone brandishing a gun in anger with no justification.

What the case is really about is the legal standard to apply. The trial court told the jury that Ra, the defendant, could not succeed with a claim of self-defense unless she reasonably believed she had the right to use deadly force to prevent death or great bodily harm. The appellate court held that this was the wrong standard. The appellate court said that brandishing a gun is not deadly force, and thus can be an appropriate response to non-deadly force. This is certainly a very rational rule, and Ra was convicted under an improper standard under the laws of the state of Michigan. It’s an interesting topic and worthy of a post and a tweet. Because the jury was instructed on the wrong standard, it could have decided that Ra was not the aggressor, but still convicted her. (This means French may be wrong that the jury accepted Harvey’s view of the facts, by the way.)

Here’s the problem: if another jury applied the correct standard, Ra still might properly be found guilty. Based only on French’s post (I’ve not had time to read the court opinion or any other coverage) it appears to me that there remain two versions: Ra was the aggressor and pointed a gun with no justification, or she acted in self-defense by using non-lethal force to deter further unlawful force by witness Harvey. In other words, Ra may not have acted in self-defense after all. We just don’t know.

French goes overboard in his tweet when he says Ra was convicted “after brandishing a gun in self-defense.” That may be true — but based on French’s article, it also may well be false. French is putting his thumb on the scale, and irresponsibly overdramatizing a potential injustice by labeling the defendant innocent when she still might be guilty.

I tried bringing this to French’s attention in tweets yesterday, but he ignored me, so I am writing this post.

This is also why I say French’s article is mostly well done until the end — because at the end, he pronounces:

Prosecutors have a right to appeal the decision to their state supreme court. They should not. Ra has suffered immensely. She gave birth while imprisoned, and her child was taken from her two days later. She spent months separated from her newborn – after a conviction under the wrong legal standard. The court of appeals reached the just result. Ra’s legal ordeal needs to end.

One can conclude that prosecutors should not appeal the case and that the appellate court reached the right decision without concluding that “Ra’s legal ordeal needs to end.” If the evidence justifies a retrial (and it might), then she needs to be retried under the proper standard. If innocent, she should be acquitted. If guilty, she should be convicted.

Too many stories about the criminal justice system these days tweak the facts to make things seem more outrageous than they really are. This is what French has done here. I respect him as a general rule, but unless he is operating off of facts that he did not disclose in his column, he has overreached here and needs to rein in his outrage a bit. He is ginning up a storm of discontent (again, read the replies to his tweet) that may or may not be appropriate. I hope he finally sees my complaints, which I will bring to his attention by tweeting this post at him, and takes some corrective action.

[Cross-posted at The Jury Talks Back.]

28 Responses to “David French Declares Woman Innocent Who May or May Not Be Innocent”

  1. How do ever find someone guilty BEYOND A REASONABLE DOUBT in these’s he said/She said cases? A tie goes to the runner. Was the another witness? Was there physical evidence?

    You say I banished a gun. How can I prove my innocence? I can’t unless there’s a witness. And I’m not sure I agree with the Judges. Ra says the gun was unloaded. So how do we know that? Her word? Its seems much easier for everyone to just say Guns are deadly weapons, and its not up to the Prosecutor to prove it has bullets in in it.

    As for French, he’s such a fake. Would he tweeted about a white woman, of course not. This is all part of the David French “SJW Conservative” act.

    rcocean (1a839e)

  2. What’s the point of brandishing an unloaded gun? You should never pull out a gun unless you plan to use it.

    rip mudock (d2a2a8)

  3. I’m a French fan… but, here I’m really disappointed as this is definitely an overreach on his part.

    Unless there are other facts that we’re missing (or he didn’t elaborate in the column).

    whembly (51f28e)

  4. The moral of this story is that if you pull a gun on someone, you have to kill them. There’s no he said/she said when you’re the only one left standing.

    Manotaur (8ab3ff)

  5. 2: wait a minute: lots of normal people (non-law enforcement), carry unloaded. So they can have easily accessible, and not locked away, something the kids won’t hurt themselves with if they find it. So if they accidentally leave it in the open, the finder won’t hurt someone. And they don’t want to become involved in an actual shooting: they hope the deterrent value alone will be enough. According to studies (Lott etc.), showing it almost always is.

    Harcourt Fenton Mudd (0c349e)

  6. Apart from what you wrote, the whole racism charge is absurd. The victim of the alleged crime, one Chanel Harvey, also appears to be African American.

    So you have an altercation between two people of the same race. And one (allegedly) goes overboard and brandishes a gun.

    So if you prosecute, you are racist. If you don’t, then you are not protecting the victim — also an African American — and you are still racist.

    Why is the victim side of these issues always ignored? Why is it racist to prosecute and convict black-on-black crime? Are black victims less worthy of the protection of the law?

    Bored Lawyer (998177)

  7. This is not Siwatu Salama-Ra’s first special guest star appearance at National Review:

    She may even have managed to get the National Rifle Association and the Second Amendment Foundation on her side as well. I didn’t even ….

    nk (dbc370)

  8. Somebody knows Otis McDonald and that somebody needs to point at Ms. Ra and say she’s is no Otis McDonald.

    urbanleftbehind (5eecdb)

  9. While I agree that the initial court ruling was too punitive, it feels like there’s more to the story than the jury believing Ms. Harvey’s testimony over Ms. Ra’s.

    Paul Montagu (a2342d)

  10. The central question is: why didn’t French go right to the decision?

    The evidence as a whole demonstrated that defendant and Harvey engaged in a heated argument in front of defendant’s mother’s home, and at some point during the argument Harvey hit defendant’s car with her car while defendant’s two-year-old daughter was in the car. There was also evidence that Harvey then drove her car at Anderson, in an apparent attempt to hit her. Defendant testified that she believed that she and her mother were both in danger because of Harvey’s actions, and that belief prompted her to brandish the gun. The evidence thus supported the theory of nondeadly force self-defense, entitling defendant to an instruction on that defense, and it is more probable than not that the lack of proper instruction affected the outcome of the case because it altered the test by which the jury decided this central issue.

    Advocaat (2526e9)

  11. While I agree that the initial court ruling was too punitive

    Mandatory minimum sentence because of the gun. The judge had no choice.

    That’s how the case has played on the left. As a polemic against mandatory minimum sentencing.

    On the right, it’s been caught up on the right to use a firearm in self-defense.

    nk (dbc370)

  12. “We don’t know” typically means there is room for doubt, and if there is reasonable doubt about who is the aggressor, I’d expect Ra to be found not guilty. I think you are right that the jury believed it didn’t matter as as a matter of law whether she was the aggressor or was defending herself and her child.

    I have to wonder what Harvey was doing there in the first place, as she clearly wasn’t invited nor welcome.

    SarahW (08f5d7)

  13. What a bunch of hotheads. Find her not guilty, its they said./they said.

    rcocean (1a839e)

  14. Andrew Branca has a good analysis of this up at Legal Insurrection. Even though the decision seems to be correct, it actually makes the issue of armed self defense less clear. The court found that the jury should have been allowed to determine if the brandishing of the gun was deadly force or nondeadly force, but does nothing to determine whether or not a gun can be displayed without being fired to discourage further aggression. The court found that in all these cases, it is strictly up to the jury to determine if displaying a weapon to discourage a deadly assault is justified or an assault itself.

    Essentially, it says that if you use a gun to defend yourself without firing said gun, the jury has discretion to convict you of assault for the act of displaying (“brandishing” in other words) the gun without taking the next step and opening fire. I understand that if you are going to pull a gun you damn well shouldn’t do it unless you are already justified in firing it, but I am worried that this might create an atmosphere where people either wait until it is too late before pulling their gun in self defense, or they assume the attitude of “once I pull it I have to use it” and fail to give the assailant that last-ditch moment to break off the attack and retreat.

    AB suggests some sort of legal direction on armed self defense regarding the display of a weapon that falls short of complete use of said weapon. It’s a fascinating discussion.

    Russ from Winterset (c30824)

  15. 6. Bored Lawyer (998177) — 8/22/2019 @ 10:30 am

    Why is it racist to prosecute and convict black-on-black crime? Are black victims less worthy of the protection of the law?

    There are not supposed to be any black perpetrators, at least not so many.

    To say that a higher proportion of blacks than other categories of people are criminals is invidious, so the question you raise almost never comes up.

    Sammy Finkelman (c95a5a)

  16. In other words, not only is Patterico correct that David French’s analysis of this ruling is superficial and incomplete, but the decision is not as friendly to armed self defense as it has been assumed to be. At least in the opinion of Mr. Branca.

    Russ from Winterset (c30824)

  17. Unless the appellate court means to restrict its ruling to only that one particular Michigan statute, its position is the minority view. Maybe even the sole view. An unloaded firearm is still a firearm everywhere else. It’s only in Coen brothers movies that armed robbery is not armed robbery if the gun is not loaded.

    nk (dbc370)

  18. And the real reason is that this country has a pro-crime lobby. That knows it is a pro-ctrime lobby.

    There are people who benefit from higher levels of street crime.

    That’s why they are against putting people in jail but don’t care what happens to them once thhey are in jail (exceppt to the extent that can be used as an argument for less or no jail.)

    Sammy Finkelman (c95a5a)

  19. It’s one thing to scare and threaten someone in order to steal, and it’s another thing to scare and threaten someone in (justified) self-defense. In the first case it makes sense to treat an unloaded gun and loaded gun the same way – it is still fair for it to be considered armed robbery; but in the second the element of reckless endangerment (except to themselves) is absent.

    Sammy Finkelman (c95a5a)

  20. Well, besides that
    “A gun is always loaded” (safety rule), and
    “A gun is not a magic wand” (common sense rule),
    the threat of being shot can keep the victim from defending himself while you club him to death with the thing. A two-pound plus metal bludgeon is a deadly weapon.

    Now, bring me a case where it’s a chocolate gun (do they still make those?), and I’ll listen. 😉

    nk (dbc370)

  21. Moreover, if the lady really had a permit, she was taught, and passed a test on, these four rules:

    All guns are always loaded.
    Never let the muzzle cover anything you are not willing to destroy.
    Keep your finger off the trigger until your sights are on the target.
    Be sure of your target and what is beyond it.

    I wonder whether the prosecution used it at the trial.

    nk (dbc370)

  22. I think the fact that the gun may or may not have been loaded is irrelevant. The point of the ruling is that the differentiation between deadly and nondeadly force was a question of fact and the judge should have left it up to the jury. No ruling on merits, strictly procedural.

    Russ from Winterset (c30824)

  23. Being willing to shoot someone does not make shooting them mandatory. Waiting until the last possible moment to pull the trigger shouldn’t increase your exposure to liability.

    Russ from Winterset (c30824)

  24. All this discussion points to AB’s main point in his analysis: rather than clarifying the issue, this ruling simply raises its hands and says “you should have let the jury make that call”. Ultimately this is a big hairy “she said/she said” furball and as a tough case is guaranteed to make bad law.

    Russ from Winterset (c30824)

  25. Like I said above, both the criminal sentence reform people and the gun rights people were not happy with this case.

    nk (dbc370)

  26. A true case of “splitting the baby”?

    Russ from Winterset (c30824)

  27. Both firearms enhancements and mandatory minimum sentences are relatively new, post-80s I’d say, and judges don’t like them in the first place and they don’t have enough precedent to help them in the second place. The U.S. Supreme Court only relatively recently ruled that the enhancement must also be proven beyond a reasonable doubt, for example. And we saw, with Ramos and Compean, a two-year sentence for aggravated battery enhanced with a mandatory minimum ten-year sentence for using a firearm that in the end Bush 43 commuted.

    nk (dbc370)

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