The Law

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?

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Christopher Donovan: An all-White basketball league?

Christopher Donovan: According to the Augusta Chronicle, entrepreneurs are planning an all-White pro basketball league. (“Basketball league for white Americans targets Augusta“) Assuming this is all on the up-and-up and not a joke, it would make a great test case for legal exclusivity. The Supreme Court held in Boy Scouts v. Dale that some forms of “expressive” association can exclude others, though they’ve also held that purely private all-male clubs are unconstitutional.  Law schools also unsuccessfully argued that they have the right to exclude military recruiters, though there was a federal statute on point that made this a slam dunk for the military.

On the whole, of course, we are denied the right of racial exclusivity in employment, housing and most major areas.  This is the truly new policy hegemony that none of our ancestors would have approved.

My argument is that freedom of association is a primary — if not the primary — human right, outstripping even freedom of speech in its importance to human fulfillment.  Or the “right of privacy”, advanced by Brandeis and Warren.  It’s so basic, perhaps, that it doesn’t have fully-fleshed arguments on its behalf.  But that’s what it needs.

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Christopher Donavan: A Quick Confession of (Tempered) Jealousy

Christopher Donovan:  From libertarian (and law school) days, I remain on the mailing list of a group called the Institute for Justice, a libertarian pro-bono legal group dedicated to fighting eminent domain, free speech restrictions, government-backed market cartels, and so on.  I’m looking at their most recent “Liberty & Law” (no link, but their website is here), and I have two thoughts.

One, I’m jealous of The Institute for Justice.  I wish white advocates had a legal outfit as on-the-ball as the Institute for Justice.  Law students want to join them, they get press, their litigators went to Harvard, and so on.  They’re established, they’re slick, and they’re having an impact on the law.

But two, they’re absurd.  For years, for instance, they’ve pushing the issue of African hair braiding as an enterprise that ought not be subjected to cosmetology licensing because it involves no chemicals or even equipment.  In the most recent newsletter, they have an emotional article titled “The Power of One Entrepreneur” featuring lovely photographs of the black woman helped by their lawyers.  The rest of the newsletter is peppered with photos of smiling black people who’ve all been helped by the power of Ayn Rand and Milton Friedman.

“Rearranging deck chairs on the Titanic” doesn’t begin to describe it.  It reminds me of what Sam Dickson once called “the silly right”, i.e., obsessing about details while ignoring the larger white dispossession.  In the face of an oncoming white minority, these jokers are dedicating their lives to African hair braiding.  Do the smarty-pants people of the Institute for Justice get any of this?

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Christoper Donovan: In Philly, Failed System… or Failed Demographics?

Christopher Donovan: The Philadelphia Inquirer is running a series on the low rate of convictions secured by police and prosecutors in the city.  The system’s overcrowded.  The sheer volume of cases makes the system unwieldy.  Defense lawyers postpone cases in the hopes that witnesses will disappear.  The black “stop sntichin'” culture keeps witnesses off the stand.  Judges dismiss worthy cases.

So, the blame comes to rest on the White “system” and its players (realizing that many in this system are actually minorities).  But the larger demographic reality is that Philadelphia is a heavily black urban area, and it’s plagued with crime and chaos for just that reason.  Juxtapose this with a criminal justice system that developed over centuries in all-white Britain — and was tweaked by all-white American Constitution framers — and you have a recipe for disaster. In fact, you have a recipe for complete unworkability, no matter how hard whites try, or how many tax dollars are squeezed from Whites.

The failure isn’t with the criminal justice system.  The failure is with the multiracial society.  Will the Inquirer take a look at that?

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Christopher Donovan: More Costs of Diversity

Christopher Donovan: I once had an e-mail exchange with a prominent pro-white thinker on the (actual dollar figure) costs of racial diversity. I was nudging his publication to hire an economist to tally it up. From welfare to crime to affirmative action, the cost to American whites must be staggering, I wrote. I was thinking in particular of the amount lost by American business owing to black and Hispanic incompetence, criminality and lack of motivation. He responded that the project would simply be too large — it would take 1000 economists, not one. The idea drifted away.

But we can continue to take note of the very strong anecdotal evidence. The latest bit comes from the Equal Employment Opportunity Commission, which has decided to go after businesses that “unfairly” make use of criminal records and credit checks when hiring. Naturally, blacks and Hispanics are disproportionately affected.

Of course, I would make the argument that racial discrimination laws should be thrown out entirely — employers, landlords or anyone else should be able to choose their employees or tenants as they please, and if they don’t want black employees, so be it.

Equally of course, the EEOC under Obama (or Bush, or anyone else) would not go for such an argument. By applying the “disparate impact” test to criminal background tests, it would indeed boost black and Hispanic employment. It will also dramatically increase the cost of doing business by allowing pilferers and incompetents onto the payroll.

If the EEOC prevails in this, whites will once again pay the costs of forced racial association, multiracialism and unwanted “diversity.”

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