Christopher Donovan: Smith v. Berghuis: The Black Defendant's Right to a Not Guilty Verdict

Christopher Donovan: On Wednesday, the Supreme Court heard oral arguments in Smith v. Berghuis, quite possibly the most absurd lawsuit of the year.  Needless to say, the claim was racial discrimination. 

Equally needless to say, he’s got supporters in the media and among whites.

Diapolis Smith, a Black man, shot and killed Christopher Rumbley during a bar fight in Grand Rapids, Michigan in 1991.  He was convicted of second-degree murder.  On appeal, he claimed that he was denied a fair trial because the jury pool had too few Blacks. 

Get this:  The percentage of Blacks in the community was 7 percent.  For Smith’s jury pool, it was 6 percent. 

How this laughably trivial complaint makes it to the Supreme Court is a testament to the insanity of the multiracial society.  The slightest claim of racial discrimination — provided it’s lodged by a non-white — throws our whole administrative apparatus into a tailspin. 

Caselaw does say, however, that a criminal defendant is entitled to a jury pulled from a fair cross-section of the community.  This has been interpreted to mean that “identifiable groups” cannot be excluded. 

So, how were Blacks “excluded” from Smith’s jury pool?   A big sign declaring “no Blacks”?  An evil White racist jury administrator who tossed every other Black person? 

Not quite. 

Blacks, evidence showed, were more likely to be excused because they asked to be excused, often for child-care or transporation reasons. 

Or, they were kept off because of their felony records. 

In other words, the slightly lower number of Blacks was because of their own behavior, not because of any exclusionary intent.  And imagine if the court refused to excuse Blacks who complained that they couldn’t serve because of a lack of money — another lawsuit would have resulted.  Damned if you do, damned if you don’t.

But all of this is only one level of insanity — a level that assumes the “cross section of the community” demand is a legitimate one to begin with. 

The supporters of Black murderer Smith, interestingly, don’t seem to doubt the existence or importance of race, despite the constant left-wing assertion that “race does not exist” or is “only a social construct.”  As always, this argument only applies when it benefits non-Whites.  Just ask Sonia Sotomayor, who whipped hostile questions Michigan’s way — but of course found no fault with New Haven, Connecticut’s exclusion of White firefighters.  

Dig a little deeper, and you see that what Smith is really claiming is the right to be tried by fellow Blacks, not Whites.  Or at least as many Blacks as he can get on his jury. 

Dig deeper still, and you see that what he’s claiming is a right to be found “not guilty” — because he presumes that his racial brothers and sisters will side with him, the evidence be damned.  There’s simply no other reason for Blacks to demand that they be tried by fellow Blacks. 

Nevertheless, I am beginning to suspect that the dreaded “all-White jury” doesn’t sometimes acquit Black defendants for fear of being seen as “racist.”  If anyone’s got evidence of this, let me know.  

Despite the insanity of Smith v. Berghuis, I see almost no critical media coverage of this suit.  Look at the “friend of the court” briefs, and you’ll see plenty — filed for Smith.  One lonely brief takes Michigan’s side. 

It all makes me want to stand on a mountain and scream, “Can’t anyone see what’s going on here?” 

If it’s the case that Blacks are wrongly accused and convicted — or cannot be fairly judged but by fellow Blacks — then I have a solution:  racial separation.  Could it be any crazier than the status quo?