Sunday, February 16, 2014
Although I am pleased with the three guilty verdicts of attempted second degree murder and the guilty verdict for shooting into a car that will keep Michael Dunn locked up for the rest of his life, I am disappointed with the jury’s failure to reach a verdict on count 1, which charged him with first degree murder for the death of Jordan Davis.
Ironically, without the presence of the three boys in the Durango and the guilty verdicts to diminish our disappointment, we would be in a much different emotional state today.
I support Angela Corey’s decision to retry him, but she is going to have to change her strategy to obtain a different result.
I am going to focus on Jordan Davis today, which is his birthday, and explain what she must do to obtain justice for Jordan.
The time has come to stop white-washing racially motivated crimes. By that, I mean ignoring the elephant in the living room, racism.
Although motive is not an element of most crimes and therefore irrelevant, it may be relevant (i.e., probative) to prove intent.
The importance of introducing evidence of racial motivation comes into sharp focus when the victim, like Jordan, was black unarmed, and the defendant, like Dunn, is white and claims he saw a weapon or a portion of a weapon and killed the victim in self-defense.
Such a killing would be justifiable homicide in self-defense, if the defendant reasonably believed himself to be in imminent danger of death or serious bodily injury.
As our United States Supreme Court has often said, reasonableness depends on the “totality of the circumstances.”
We know from Dunn’s letters that he regarded the four boys as dangerous thugs and gangsters listening to “thug” music.
That is a racist assumption unsupported by any evidence.
Sometimes people see what they expect to see or want to see and that certainly applies to racists who are substantially more likely to assume that an unarmed black male teenager is an armed thug than an unprejudiced person.
Like it or not, that mindset is part of the totality of the circumstances that a jury should have a right to consider in deciding whether a defendant like Dunn gave a truthful account of his actions and acted reasonably.
Our legal system needs to acknowledge the existence of racism and call it what it is, an insane delusion.
A claim of self-defense must be evaluated according to whether a reasonable person in the same situation as the defendant would have believed himself to be in imminent danger of death or serious bodily injury such that the use of deadly force in self-defense was reasonably necessary.
There is no such thing as a reasonable insane delusion and we do justice to no one by excusing a violent act committed by a person pursuant to an insane delusion and ignoring the consequences of that act.
I do not mean to suggest or imply that Dunn actually saw a weapon or believed that he did. I believe he lied about that to avoid arrest and prosecution.
Evidence of a racial motivation to kill makes comprehensible the otherwise incomprehensible crime.
For example, let’s assume that a defendant in a murder case, who shot and killed an unarmed teenage girl whom he did not know, testifies and says,
“Why would I have killed her unless I believed she had a gun and was going to rob and kill me?”
A racist is more likely to believe that she had a gun or lie about it than a person who is not racist.
White washing racist defendants by concealing or withholding evidence of their racial motivation from a jury will produce injustice, not justice.
It is not a coincidence that my hypothetical resembles the Renisha McBride case in Detroit, which is coming up for trial in June.
I do not know if Theodore Wafer is a racist, but I certainly would be looking for such evidence with the intent of introducing it at trial, if I were the prosecutor.
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