So we were having a discussion about the Breonna Taylor situation. Our interlocutor was a guy who had done prison time for manslaughter. He had been a passenger in a car with four other individuals, two of whom left the car at some point and, unbeknownst to our interlocutor and without his prior knowledge or agreement or participation of any kind, killed someone.
Everybody got rounded up and processed through our “system” and the outcome was a homicide conviction and prison time for our interlocutor: someone who, assuming the truth of his account, wasn’t guilty of anything.
Do we know other similar stories? Absolutely. And that’s just us. We are sure that many other lawyers who have done criminal defense can cite as many, or indeed many more similar stories.
Here’s the point. Our position here at LoS is that the cops in Louisville should not be prosecuted, that they had no criminal intent. Our interlocutor’s opinion, though, is that the cops have to “take responsibility” for what they did.
He’s wrong, of course, to the extent “take responsibility” means to accept criminal liability, which is in fact how he means it. There’s no crime without the intent to commit one. In theory, anyway.
But when he was on the receiving end our interlocutor’s intent didn’t matter. You see the problem?
We taught him (and many, many others) exactly this, in other words. He did prison time because we insisted on teaching it to him. And now he cannot see how all of a sudden intent matters because the accused are cops. So even though he is ultimately wrong in principle we can understand his reasoning. It’s bad reasoning – shallow reasoning – but that’s what governs the system in all too many cases. And he’s right about the double standard: five million cases where the defendants are not cops and little nuances like intent don’t matter at all; then the one in five million where the defendants are cops and now we’re all about nuances?
Later on we were discussing the BLM movement with a colleague, trying to explain the connection between how our system has operated for decades and the civil unrest we are experiencing. Our colleague understood in the most theoretical way the causal connection, but denied that BLM protesters were making any such connection, arguing that they were just commie-influenced rabble-rousers taking advantage of the moment.
This seems to us a failure of imagination, an inability to see things from another’s point of view, and a refusal to appreciate the damage the system has done to people’s sense of justice, individual by individual, over decades.
Sometimes it’s too late. It may not be too late in absolute terms to right the ship of state, so to speak; but it’s probably too late for the actors in the Breonna Taylor play out in Louisville, just as it is probably too late for the actors in the Daniel Prude play in Rochester.
Which is to say, that if nuances are going to matter again – and they should – that will have to await later cases. The prevailing argument right now is a very simple “what’s good for the goose is good for the gander”. We’ve convicted and punished – wrongly – perhaps hundreds of thousands of people. And haven’t cared. We’re not going to be allowed to suddenly start caring because the defendants are cops.
BLM is right. Not in theory, but in practice. Theory and practice in our justice system have destructively diverged for decades. Bringing them closer together will have to happen in future cases. Not present ones.
Two wrongs do not make a right. True enough. But sometimes timing matters. Sometimes it’s determinative.