Saturday, August 3, 2013
Thursday, July 25, 2013
|Former New England Patriot Tight End Aaron Hernandez during Happier Times|
By Eric J. Davis
In case you haven't heard, former New England Patriots Tight End Aaron Hernandez has been charged with murder in Massachusetts. Now, mind you, he has only been charged and has not been convicted of anything. In fact, none of the alleged evidence against him has even been presented or challenged in open court. For that matter, very little of the alleged evidence against him is even known to the public. Yet, the New England Patriots organization terminated his contract; provided a refund to fans that wanted to return his jersey; and allowed their head coach to go on national television and decry Hernandez by expressing disappointment and betrayal towards the tight end. (Click here to See Bill Belichick's statement regarding Hernandez).
The Patriot's response is a diaphanous attempt to counter an anticipated negative public backlash as a result of Hernandez's arrest. Prior to being a professional athlete, Aaron Hernandez was a tremendous talent that a lot of NFL teams passed on drafting because of "character concerns." The Patriots, focused on winning and making money, gambled that the rewards from his talents would outweigh the risks. So they drafted him. And it looked like they hit the jackpot. Rewarded by a new multimillion dollar contract, Hernandez was an up and coming star in the NFL. And then he was investigated and charged with murder.
He was immediately presumed guilty and punished accordingly..... all before ever making it into a courtroom. But it begs the question, why would a football star who was paid millions and endeared by countless fans be cast down by his team because of mere allegations? Why not wait until Hernandez had his day in court before abandoning him? If any place would understand about liberty it was Boston, right? Remember that Tea Party? That was in Boston, wasn't it?. The Laker's waited for Kobe Bryant's case to play out. And the Ravens waited for Ray Lewis' case to play out. Why couldn't the Patriots wait?
Well, part of the issue has to do with the current cultural trend in America of disregarding civil liberties. The presumption of innocence is one such civil liberty. It is the principle that one is considered "innocent unless proven guilty" ("innocent until proven guilty" assumes that one will eventually be found guilty, and feeds the idea that an accused is presumed guilty). The presumption of innocence is a legal right of an accused person. And it means we are to treat the person as if they are in fact innocent, unless the government proves that the person is guilty beyond a reasonable doubt. The burden of proof is on the government and never shifts to the accused person to prove their innocence. A jury presuming innocence is enough to find an accused not guilty. However, current culture assumes that all allegations are true. People express distrust in the media, but believe everything they are told; rarely reserving judgment until all the facts are received. And the Patriots, while responding to this cultural trend, have fired another shot into the heart of the presumption of innocence by condemning Aaron Hernandez before he has had a trial. When we presume guilt, we run a greater risk of convicting an innocent person because judgment isn't based on evidence; its based on accusations and allegations and recriminations. And the ability of an accused person to change the minds of his accusers might not be sufficient to overcome a presumption of guilt. Meaning, some juries that quietly start off presuming guilt will convict the innocent. With flute in hand, the Patriots have marched us down a very misanthropic trail.... downright unpatriotic.
Tuesday, July 23, 2013
I heard that President Obama commented about the Zimmerman Case last week. My wife urged me to listen to it, but I have been in a contentious trial these last two weeks. It ended yesterday. So last night I listened to the speech and it was indeed worth hearing. During the speech, the President candidly discusses race in a rare attempt to interpret for a largely white audience the different responses that black people might have to the verdict. Black men feel grossly misunderstood, hated and feared. It was interesting hearing that the perspective is shared by the most powerful man in the world.
This speech, as well as the Martin case, affords America an opportunity for a frank dialogue on the issue of race. Some people think we are past the "racial divide" in America and they point to the election of President Obama as evidence in support of their contentions. Others think that the ill treatment and disrespect that President Obama has received is evidence that the "racial divide" remains. I understand that discussions regarding race are uncomfortable and painful for many. But unaddressed racial wounds become infected with hatred and more misunderstanding.
In Texas, given the ultraconservative climate, it is even harder to discuss. The ultraconservative political machine has done a good job of characterizing all discussions of race as "playing the race card." People are fearful of engaging in such discussions even when it is obviously necessary. Rarely do I see lawyers discussing race in jury selection; even in cross-racial crimes. And some Texas defense lawyers refuse to even see the issue. And unsurprisingly, black men are convicted on thin evidence by all white juries in those cases. Many of the DNA exoneration cases in Texas involved cross racial crimes and all white juries. So, we have to learn how to discuss race without seeming like we are "playing the race card." If we don't, justice will continue to be trampled by the elephant in the room.
Tuesday, July 16, 2013
|This picture shows protestors in Utah, whites and blacks, demonstrating in opposition to the Zimmerman "Not Guilty" Verdict.|
By: Eric J. Davis
Recently, I started teaching undergraduate courses on Criminal Law here in the Houston area through the University of Houston System. My purpose in doing so initially was to stay in tune with the next generation and to increase my understanding of people. I also wanted to challenge people to think and grow. Fortunately, teaching classes has had that effect on me - it has caused me to think and grow deeper as a person. I have learned so much for which I am thankful from some of my students.
During one of our class discussions about wrongful convictions I presented the question, "What do you fear the most, the guilty going free or the innocent being convicted?" I think the question surprised them because there was a long silence before people started to answer. But the answers came.... and they came in bunches. The majority of the students said that they feared the guilty going free the most. I was surprised. I had the romantic notion that students were suppose to be open to new ideas and open to making the world a better place. When I was a youth, I wanted to be a champion of freedom and liberty. How could youth stomach an innocent man being in jail more than a guilty man going free, I thought. I challenged their notions and the debate began. The discussion was lively. One student said, "If the innocent are convicted, then it is very probable that a guilty man will still go free because the innocent man will be in jail in his place." I stopped and thought about the truth of his statement. In cases where a crime has been committed and the issue is who committed the crime, if an innocent man is convicted, the guilty man isn't. He is free to commit more crimes. Taking it a step further, if an innocent man is convicted in any type of case, aren't we all then guilty of unjustifiably taking his liberty?
I realized that there was a reason students felt the way they did about this question. Many had life experiences that shaped their perception of crime and punishment. Those students that were more apt to have the most conservative views generally feared the guilty going free. The students who were not as conservative generally feared the innocent being convicted. But this was not always so. The question really seemed to reveal a tolerance level for authoritarianism. It was so effective that I started using it during Voir Dire in trials. I ask the question of the entire panel and I have each prospective juror answer out loud. I have people answer, "Guilty" if they fear the guilty going free and I have people answer "Innocent" if they fear the innocent being convicted. Surprisingly, a lot of people answer "Guilty." And some of those people were people who had answered no other question. So those people would have made it on the jury had I not asked this question.
When we think about the George Zimmerman trial, what's our answer to that question? Does race cloud our answer? Meaning, do we pick a side because of our respective race when we answer? Or, is our answer shaped by our life experiences? Does the age of the kid cloud our answer? What do we fear most, Zimmerman being actually innocent of the crime and going to prison? Or Zimmerman being actually guilty of the crime and going free? Herein lies the answer.
Monday, July 15, 2013
|Black children reacting to the Zimmerman "Not Guilty" verdict.|
The verdict is in. And America is polarized by the result. Why do different people groups view this case so differently? Although a unique case, this isn't the first time we have been here. The cops in the Rodney King beating case... people were talking about reasonable doubt then too. But when O.J. Simpson was acquitted, not too many people were talking about reasonable doubt. There is a great article from law professor Darren Hutchinson analyzing the Zimmerman case and this interesting aspect of our criminal justice system. A link to the article can be found here.