Open thread Nov. 30, 2021 Dan Crawford | November 30, 2021 6:41 am Comments (37) | Digg Facebook Twitter |
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November 30, 2021
By David Leonhardt
Good morning. The Ahmaud Arbery trial offers lessons for American politics.
A memorial for Ahmaud Arbery.Nicole Craine for The New York TimesWords and deeds
The most effective way to achieve racial justice can sometimes be to downplay race.
That may seem like a counterintuitive idea. And it can certainly feel unsatisfying to people who are committed to reducing the toll of racism in the United States. But it is one of the lessons of the murder convictions last week of three white men in Georgia, in the killing of Ahmaud Arbery, a 25-year-old Black man.
I want to revisit the case this morning, because it has a broader relevance to American politics.
By now, you’re probably familiar with the basic facts. Arbery was in a predominantly white neighborhood near his home in coastal Georgia on Feb. 23, 2020, when three men in pickup trucks chased and shot him.
Racism played a clear role in the killing. One of the defendants used a slur shortly after the shooting, according to another defendant. All three had a history of sending online messages tinged with white nationalism.
Nonetheless, the prosecutor in the case, Linda Dunikoski, decided mostly to ignore race during the trial. She accused the defendants of having a racist motive only once, in a single line of her closing argument. She instead portrayed them as lawless figures who killed a young man.
Before the verdicts, some observers criticized the strategy, saying that Dunikoski was weakening her case by ignoring the defendants’ motive. “There were a lot of people who thought that it should have been very central to her argument,” said The Times’s Richard Fausset, who covered the killing and the trial. One law professor accused Dunikoski of “whitewashing” the facts. Another professor said that her strategy would be blamed if the defendants were acquitted.
No doubt, it would have been. Dunikoski was deliberately leaving out a big part of the story. But she was doing so for a reason. (Or so it seems; she has not publicly discussed her strategy.) She evidently believed that emphasizing race would be a gift to the defense.
It could cause the jurors — all but one of whom were white — to retreat to their ideological corners. Conservative jurors would be reminded that they often disagree with allegations of racism. Many political moderates disagree sometimes, too, especially if they’re white. On the other hand, any jurors likely to be appalled by the racial nature of the case — three white men killing a Black man in broad daylight — would recognize the role of race without needing to be told about it.
Linda Dunikoski, the prosecutor, during the trial.Sean Rayford/Getty ImagesThe anti-Bannon strategy
It was a miniature version of a tension that runs through American politics.
Progressive activists often point out — accurately — the central role that race and racism play in the U.S. Polls show, for example, that a large percentage of Americans feel racial animus. That animus helped fuel Donald Trump’s political rise, starting with his promotion of the lie that Barack Obama was born in Africa. And racial discrimination continues to shape our economy, schools, criminal justice system and more.
Yet when activists try to combat racism by calling it out, they often struggle to accomplish their goals. Focusing on Trump’s racist behavior did not keep him from winning the presidency. The Black Lives Matter movement has mostly failed to implement its policy agenda on policing. Affirmative-action programs generally lose when they appear on the ballot — including a landslide loss in California last year, helped by opposition from many Latino and Asian voters.
Race-based strategies are especially challenging in a country where living standards have stagnated in recent decades: Working-class families of all races have reason to distrust the notion that they enjoy a privileged lifestyle. No wonder that Steve Bannon, the far-right political figure, once said that he wanted liberals “to talk about racism every day.” When they do, Bannon said, “I got ’em.”
‘Attack the design’
The Arbery trial offers a reminder that calling out racism is not the only way to battle it. Sometimes, a more effective approach involves appealing to universal notions of fairness and justice.
Another example is child poverty. Senator Cory Booker of New Jersey was an early advocate of baby bonds — universal savings accounts for children, an idea that helped shape President Biden’s focus on reducing child poverty. The beauty of the policy, Booker told me, is that it substantially reduces racial gaps in child poverty (because children of color are more likely to be poor) while still being inclusive.
“It’s very hard to undo centuries of racial policies by suddenly saying, ‘I’m now going to not be conscious of race in America,’” he said. But, he added, “This is a policy that I think can be embraced by you, whoever you are, whatever your background.”
Representative James Clyburn, the highest ranking Black Democrat in Congress, made a similar argument when explaining why he favored a version of slavery reparations that would also help poor white families. “Race is the reason income is what it is,” he told The Washington Post. “This is by design. So attack the design.”
The downside of this approach is clear enough. Given the long history of intense racism in the U.S., universal programs will never fully solve the problem. Of course, policies that fail to get enacted accomplish much less.
Dunikoski’s trial strategy may have felt uncomfortable to anybody repulsed by the defendants’ racism. But imagine how uncomfortable an acquittal would have felt.
Arbery’s family members, notably, were not among Dunikoski’s critics, as Richard Fausset has reported. Even before the verdict, the family liked the prosecution’s approach.
For more: On “The Daily,” Richard broke down the trial in more detail, with help from courtroom audio clips.
No Intro? Like, what are you thinking about this news commentary?
trying not to use bandwidth. and to keep my name out of the argument.
i “tend” to agree with it. but i have said that before to boos and hisses.
“tend means this is “politics” and i know nothing about politics, can only offer opinion.
I believe there is a box of tissues near Dan for you to dab your eyes. Maybe he will give you one. I won’t. Quit the whining.
don’t need the tissues. i will just use the pages of this little red book here.
Excellent and outstanding. Leonhardt generally runs a bit smarter than most of the MSM.
[Please pardon the long excerpt, but I wanted to hit it on the sweet spot before ellipsis out…]
How a prosecutor addressed a mostly white jury and won a conviction in the Arbery case
Nov. 25, 2021 at 3:30 pm Updated Nov. 26, 2021 at 2:43 pm
The New York Times
BRUNSWICK, Ga. — The lawyer was from out of town, a prosecutor who had spent the bulk of her career in a large, liberal city, and she had been brought in to try the biggest case of her career: the murder of a Black man on a sunny afternoon by three white men just outside a small city pinned to the south Georgia coastline.
Despite the evidence of racism she had at her disposal, Linda Dunikoski, the prosecutor, stunned some legal observers by largely avoiding race during the trial, choosing instead to hew closely to the details of how the three men had chased the Black man, Ahmaud Arbery, through their neighborhood.
The risks went beyond her career and a single trial. Failure to convict in a case that many saw as an obvious act of racial violence would reverberate well outside Glynn County, Georgia. For some, it would be a referendum on a country that appeared to have made tentative steps last summer toward confronting racism, only to devolve into deeper divisions.
On Wednesday, Dunikoski’s strategy was vindicated when the jury found the three men guilty of murder and other charges after deliberating for roughly a day. The convicted men — Gregory McMichael, 65; his son Travis McMichael, 35; and their neighbor William Bryan, 52 — are facing life sentences in prison. They are also facing trial in February on separate federal hate crime charges.
Kevin Gough, the lawyer who represented Bryan, credited Dunikoski with threading the most difficult of needles. She mentioned a racial motive just once during the three-week trial, in her closing argument: The men, she said, had attacked Arbery “because he was a Black man running down the street.”
“She found a clever way of bringing the issue up that wouldn’t be offensive to the right-leaning members of the jury,” he said. “I think you can see from the verdict that Dunikoski made the right call.”
A number of legal experts, in the moment, thought Dunikoski’s strategy to be a risky one. But many in Brunswick thought that she had proved savvy about what tone to strike in a Deep South community where, they said, race doesn’t have to be referenced explicitly for everyone to understand the implications.
Cedric King, a Black local businessman, said that the evidence against the defendants, particularly the video of Arbery’s murder, had been strong enough to stand on its own.
“Anybody with warm blood running through their veins that witnessed the video and knew the context around what transpired knew that it was wrong,” King said.
The case, from the beginning, echoed painful themes in the Deep South. The murder of a Black man by white men carrying guns, presented to a jury that included just one Black person. The rest were white. The jury had been put in place over the protests of Dunikoski, who had tried unsuccessfully to prevent potential Black jurors from being removed during the selection process by the defense lawyers. It was also a painful moment for Glynn County, a majority-white county that voted largely for Donald Trump in 2020 and remains marked by the legacy of segregation.
Its county seat, Brunswick, had earned accolades, decades ago, for the way its Black and white leaders worked together to integrate schools and public facilities. But the selection of such a racially lopsided jury had sparked anger and mistrust in a county where more than 1 in 4 residents is Black. Neighboring Brunswick are four barrier islands known as the Golden Isles, a popular tourism destination that is also home to some of the wealthiest people in the country.
Before the trial, Dunikoski, 54, who declined to be interviewed, had spent her career largely in the Atlanta metropolitan area, establishing a reputation as a tough-minded prosecutor going after murderers, gang members and sex offenders. By the end of the trial, she had won the trust of the Arbery family so deeply that they came to call her Auntie Linda…
“I think you can see from the verdict that Dunikoski made the right call.”
I think you can see from this narrative that this is an experiment without a control. Obviously, the choice to do it this way yielded the right result, but nobody can say whether calling out the obvious racism would have yielded anything different.
My problem is that I have watched every episode of Bull on TV and I foolishly believe that Doctor Phil McGraw is a real person. Oh, wait…
Yes sir. It was really referenced back to Joel’s “experiment without a control,” which you picked up in your comment @2:39 PM on 11/30/21. Trial science is a well established discipline for trial lawyers although generally just considered the difference between being a competent trial lawyer or not. It takes a psychology PhD and a bunch of data mining geeks to make it science, but the interplay between jury members and presentation approach to achieve the desired end is ancient.
“calling out the obvious racism”
why do you need to call it out if it’s obvious?
i suppose Dunkirk was an experiment without a control; nobody can say whether surrendering to Hitler would have yieded anything different.
did Jenner have a control group?
Trial science is nothing new, just not usually done under the supervision of behavioral (rather than clinical) psychologists such as Doctor Phil before he became a TV personality or the fictional Bull inspired by his former work. Trial science has been around centuries longer than microbiology although by a less auspicious name (e.g., that damned clever country lawyer). Every good lawyer does it, but it is not easy since both adversary counsels get the same number of “dismissed without cause” shots during jury selection. First they have a strategy that gives them the questions (and desired answers) that they will use in jury selection. Then the two counsels proceed through voir dire to arrive at the actual jury, which if it comes as a disappointment relative to their initial strategy, then they must consider a new way to present their case to the jury they have. However, in this case there was no chance of all that happening. Dunikoski knew from the start that given her venue she would be trying racists for a racially motivated crime in front of a Southern white jury that would be mostly racists. Her only flaw in her prosecution was that she was way smarter than her critics. That is how it goes for smart people, so I doubt it caused her to even miss a step. With her successful record of prosecutions, then she is probably used to criticism from the peanut gallery.
Ron @ Dec 1, 7:00 am
I think you addressed your comment to me because you knew I would appreciate it, not because we were having a disagreement. You educated me a bit because i did not know who doctor phil or Bull was from your former comment. But otherwise I was already on board.
Though even that has become dangerous to say around here anymore.
I understand the “independence” thinking, but how long can Biden wait for Garland to grow a set?
Ditto. We need some action. Even the rotund Barr moved faster.
I was never a big Beatles fan, so I will not watch the ” Get Back” documentary. But it reminded me of this humorous but sad story.
“Meredith Willson’s The Music Man was a hit on Broadway when it premiered in 1957, winning five Tony Awards, including Best Musical (West Side Story was also nominated that year) and running for 1,375 performances. The cast album held the #1 spot on the Billboard charts for 12 weeks and stayed on the charts for a total of 245 weeks. It won the first Grammy Award for “Best Original Cast Album” (West Side Story was also nominated.)…
“Till There Was You” was recorded by the Beatles on their 1963 album With the Beatles. Meredith Willson’s widow told the NY Times that the Willson estate made more money from the royalties of the Beatles’ cover of that song, than it did from the show.”
To have children, or not?
I have stopped worrying about the future of climate change. It is a problem that solves itself. Once planet Earth is no longer habitable by humans, then the emissions will be halted and in a few centuries the Earth will be OK again. The cockroaches have been waiting a long time for this. One must admire their patience, but they probably knew that human extinction would be inevitable long before we did.
BTW, no – not really; but definitely maybe. Not knowing how this is going to go, then we probably should not be at all confident about our current position. By the next POTUS election then Rachel Carson will have been dead for sixty years. Now that is progress :<)
definitely. more like millennia (millions of enia) than hundreds.
But I put my money on the cockroaches,
Well, all of us have relatively short lifetimes,
so there’s no real need to be concerned about
events that will end civilization in the ‘distant’
future, i.e. after one has passed on to the Great Beyond.
As near as I can figure, that’s why we persist in not
dealing with this particular problem.
In other words, particularly if you are a red-state
Senator or a GOP Representative in Congress,
you feel entirely justified in ignoring it.
We are toast.
Perhaps the most outrageously stupid situation in the US
is that the Supreme Court (and the Congress) has
determined that it’s entirely permissible to
obtain a firearm and use it to kill any
number of people.
Now, doing so may be a crime, and
you may be held responsible, or maybe not.
That this causes grievous social distress does not
seem to be of sufficient concern to the Supreme Court or the Congress.
(If it’s awkward to obtain a firearm on your own,
you can always get a friend or a parent to do so for you.
And most likely, they will not be held to account.)
What We Know About the Michigan High School Shooting
OTOH, if we can’t deal properly with income inequality,
or racial justice, or the destruction of the global
climate, then we may just as well not do
anything about random mass shootings,
which is a matter of free-will and thus
here I go again, abusing my bandwidth. it is useless for me to say i agree with you. “That’s what they all say,” says management.” And the reason they all say that is because sometimes it’s true, and “they” hope you will believe them. But if you, or management, disagree with them. it doesn’t matter whether it’s true or not.
Why does it matter if “this is a uniquely American problem”? would we not need to address it if it was a worldwide or universal problem?
Granted that we need to deal with it, does it matter that “about” half the people in the country are more concerned about their “gun rights” than they are concerned about the occasional mass murders that happen to someone else?
Now, I think that it does matter. Politically at least.. you only have to threaten (as they see it) people on one issue, or appear to threaten them, for them to join your enemies on other isssues even you might think more important if you thought about it..if you could stand the perceived hatred from people who would think you don’t care about the victims of mass murder.
And, second, I think…maybe less and less so as time goes on… that a government that takes away people’s guns has motives they are not telling you about, or if they don’t have those motives, they will, or their successors will. Frankly, right now I can’t see that that matters very much. Any such government would have no difficulty disarming the people “one at a time”, or inducing the still-armed to join them in whatever plan for absolute power they are pursuing.
But it’s the look of the thing, and the psychology of the thing, that will matter more than than the “reasonableness” of the thing. I guess I will add that from the point of view of the government, any government, a few thousand deaths here and there is no big deal unless it makes “governing” the masses troublesome.
anyway, it’s just a thought.
This is a quote from the cited article – not my words.
It’s actually a problem everywhere. But we happen to live
here, where there’s a huge number of firearms. More than
elsewhere, but it happens elsewhere also. Some like to point out
that the total enormous number of guns in the US is largely due to
a few ‘collectors’ owning dozens or hundreds of firearms, and
it’s really only 25% of Americans who own one or two, so
what’s the big deal really? This may be BS, but it is
also ‘conventional wisdom’.
yes, it was in the article you quoted. but you quoted it, and i had a question about it.
i thinkthere are countries where lots of people ow firearms and there are no mass murders. and countries where almost no one owns firearms and there are mass murders. and both and neither.
that’s what makes it a uniquely American problem.
I guess the big deal is that some of us don’t like mass murders, and some of us like our guns (“us” here does not mean “me.”
and another some of us exploit the issue whether we really care about it, or them, or not.
no fingers were actually pointed in this message.
did you ask those who say “only 25%…so what’s the big deal?” what the percent has to do with the killings?
or is it that 25% is not enough to win an election?
mere quibbling, I know. don’t step in it.
25%, in the right voting areas,
is probably enuf to win a presidency.
25% of US citizens being gun-owners suggests
a propensity toward violent behavior.
States that were easily flipped in 2016,
and again in 2020, can just as easily
be flipped back under GOP auspices.
free will and constitutional protection
no clauses in the Constitution about free will. There is an ambiguous clause about “right to bear arms” the meaning of which is in the eye of the beholder..as is the rest of the Constitution, strict constructionists notwithstanding, not mentioning reading the minds of the Framers.
but back to free will…maybe constitutionally protected by the Founder (of all things) but of course subject to objections from other posessors of free will, and not to be confused with “freedom,” though it usually is.
No one has solved that problem..conflicting free wills…without either resorting to a “king” or some version of “democracy” with its various checks and balances, always subject to abuse by the dominant party, whether in congess or the white house, or a dark alley.
so far, i am placing my bets on democracy-with-checks-and-balances. Although I see right here in River City that no one takes that idea seriously. They taught me in school that half the population you see on the streets is clinically insane. At first I thought “wow!” Then I thought “nah.” I’m getting back to duck and cover.
But as for climate change..i think the clinically insane will prevail, unless we few can prevail upon our leaders to do the right thing and lead the masses to follow. It has happened.
I don’t really wish to get into this with you.
I see that the idea of constitutionally protected ‘free will’ is tied to First Amendment rights, i.e. ‘freedom of thought’ (or belief). One could say that ‘freedom of action’ is something different. Perhaps it should be. Ii seems that in effect, a person is constitutionally permitted to commit (or consider) an action that most would consider a crime (like a certain President shooting someone on Fifth Ave in NYC and getting away with it). Various parts of the Bill of Rights seem to address the idea that people are entitled to behave badly if they choose.
You want to quibble? Feel free to do so.
I wouldn’t think of quibbling,
In other news…
Lawmakers reach deal on spending bill, but hurdles remain to avoid government shutdown