When I was eleven and twelve, I was gripped by the stunning injustice of segregation. I read To Kill a Mockingbird and Black Like Me. I saw the photos and heard the stories of the separate but never equal accommodations in buses, at water fountains, and in schools. I learned of lynchings, of trials never conducted before a jury of one’s peers, of guilt being determined by skin color, not by evidence. I learned of the Scottsboro Boys and the mockery made of the Constitution and the law and their requirements for due process. The segregationist community desired to send a message, and that, not fact, not justice, ruled the courts and dictated the verdicts.
As I grasped it, as it was understood in my family, this was the same sort of thing as we Jews had been subjected to again and again. To stand against it was the signal moral duty of anyone who loved freedom, and the single greatest moral issue testing America as the place offering liberty and justice for all. We fought against such injustice without, fighting and defeating Nazism, and now we had to defeat the more insidious enemy within, one that discredited and befouled the American legacy the way no external foe could ever succeed in doing.
What made segregation wrong? As I saw it then and as I see it now, sixty years later, it valued race over truth, race over justice, race over decency and compassion. It reduces and diminishes humanity, considering the only truly meaningful thing to be certain generally irrelevant genetic traits. Have those genes and you have political rights; if not, you don’t. Have them, you have a fair trial, with the case decided by the facts and by the law, fairly interpreted and applied. If not, your verdict will reflect the demands of the passions of the ruling group, not the evidence or the law.
The verdict rendered in the trial of Kim Potter is just such a verdict, reflecting the same disrespect for law and constitutional process as did the BLM riots across America last summer when the incident for which Potter was tried took place.
What were the facts? The main ones were largely not in dispute at the trial. Daunte Wright was pulled over for a routine traffic stop. On the routine check that followed, it turned out that there was an outstanding felony warrants for Wright’s arrest. Wright then did not comply with a lawful order to come out. Potter intended to stop Wright from fleeing and endangering her partner, and pulled out what she thought was her taser gun and fired it. But Potter had mistakenly drawn her service pistol instead and the shot she fired killed Wright.
Potter was indicted and tried for first- and second-degree manslaughter. Minnesota statute law is clear that such crimes involve intention. The relevant part of the first-degree statute requires the defendant to have “intentionally cause[d] the death of another person.” The relevant part of the second-degree statute requires the defendant to have “create[d] an unreasonable risk, and consciously take[n] chances of causing death or great bodily harm to another.”
There is no serious doubt that Potter did not intend to cause either death or bodily harm. The taser is used precisely because it does not kill and only rarely causes lasting bodily harm of any sort. Nothing else in the Minnesota statutes applied to her case.
The crime of manslaughter was a common law crime before there were statutes. Continuing clarification of the common law offers powerful support for Potter. A UK court of appeals issued a ruling in a Gross Negligence Manslaughter case in 2004 (Misra) in which they cited with approval the trial judge’s statement:
Mistakes, even very serious mistakes, and errors of judgment, even very serious errors of judgment are nowhere near enough for a crime as serious as manslaughter to be committed.
The UK Crown Prosecutors Service summarized what this means:
The defendant’s conduct must fall so far below the standard to be expected of a reasonably competent and careful [person in the defendant’s position] that it was something truly, exceptionally bad.
They further specify that there is no manslaughter unless
the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.
Just the fact that death resulted is not enough to establish such reprehensibility, as the need to set this standard makes clear.
In the case of Wright’s death, there was no intention to kill or to harm. There was no exceptional and reprehensible choice made. The tragic and unintended death of Wright resulted from an accident that Alan Dershowitz compared to a driver confronted unexpectedly with another car or person who steps on the gas instead of the brake. There was no intention, no choice to do something reckless and dangerous. Just a terrible result, with a moral culpability that Potter immediately felt — see the video of that moment. As with so many things in this world, there is pain, there is moral responsibility, even blame, but there is no criminal guilt.
But the community in power had already made up its mind. The verdict was meant to reflect not the law and the evidence, but the passionate narrative to which the ruling powers of this state subscribe. Thus, we hear Minnesota’s governor Tim Walz saying, “We know that this tragedy is connected to the deep and systemic racism endemic in this country,” even as bands played and people celebrated and the family called for the maximum sentence for Potter.
Those who made their narrative win over law, over truth, and over compassion would be horrified to see themselves as being in substantial agreement with the law system of state-imposed inequality in the South. Those people too believed they were standing up for civilization and a greater truth than the law. The whole order of what was right would have been threatened by an acquittal of accused blacks, and so regardless of the facts and of lack of due process, convictions were rendered.
But even in the grim 1930s, the gross injustice of the Scottsboro Boys case was overturned by the Supreme Court. The savvy and courageous Dershowitz, a constitutionalist to his bones, is reasonably confident that this conviction, too, will not survive judicial review.
There is something deeper involved, as well.
In one of the most liberating passages in literature, Moses declares in God’s name, “I have set before you life and death, blessing and curse…. Therefore, choose life.”
But according to the fashion among some who currently hold power, there is no choice. Death and curses are decreed for being part of a group used in a scapegoating narrative. Cynical to the core, these people spread a nihilistic disdain for truth and for law. Their story is all they have; the devotion and fanaticism that religion alone is capable of refining and civilizing is poured into their politics.
We have seen the results too often, whether in totalitarian Europe or segregationist America. Until we respect the freedom we have to make choices and we stand accountable for them, our Constitution and our ideals cannot work.
But faith survives the worst excesses of power and seeks to see freedom reborn, no matter how long it takes. It may be we won’t have to wait too long this time.
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