The Jury Talks Back

8/22/2019

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

Filed under: Uncategorized — 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.

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