THE YANEZ TRIAL MAY ACTUALLY REPRESENT PROGRESS AND INTEGRITY IN CERTAIN ASPECTS OF OUR JUSTICE SYSTEM, AND REVEAL THE UGLY TRUTH ABOUT SOCIETY, NOT THE LAW
As the Nation and World focus on a myriad of stories from the ongoing investigation of the Trump administration to the tragic shooting targeting members of Congress and staff in Washington D.C., the focus in Minnesota has been on the trial of Officer Jeronimo Yanez for his actions in the shooting death of Philando Castile. The six day trial, the remarkably long five days of deliberations, and the ultimate verdict of not guilty on all counts, presents a unique analysis and opportunity for dialogue that, as is so often the case, has been lost to anger, division, and preconceptions. There are legitimate emotions that bare upon the evaluation of the outcome. The African American community has absolutely legitimate grievances in the disparate treatment of black individuals by law enforcement. This has resulted in a well-founded distrust of the police, who in turn respond with frustration and a posture of defense of their profession and colleagues. Most poignantly, a young man who, by all accounts, was an upstanding individual, a bright light to the community, and a friend to many children and teachers and staff at J.J. Hill Montessori, is dead. Yet it can be said, as a matter of prosecutorial action and due process, the case as a whole actually may represent progress and a hope for our justice system. It can also be said that the case raises more challenges going forward.
Doubt and Skepticism, the heart of the criminal justice system.
It is important to note, from the outset, that our justice system necessitates and demands the presumption that every single defendant accused of a crime is INNOCENT. That is the premise for each case. Every jury is told this, and we are all, collectively, the potential jury pool, and yet that is in profound contrast to how we treat stories when we read the newspaper. We see that this or that person was booked for child molestation, or domestic assault, and we automatically judge them and essentially presume they committed the act alleged. Essentially, Americans engage in a completely un-American thought process on a daily basis. This is not an opinion that is allowed in the justice system. You cannot be a juror if you cannot presume someone innocent. That presumption of innocence remains with the defendant from arrest, to preliminary hearings, to the trial itself, all the way until the end of the presentation of all evidence and argument at trial. The Jury is instructed on this several times. For a defendant to be found “guilty”, the jury must, after clandestine deliberation after analyzing all evidence, UNANIMOUSLY find the defendant guilty or not guilty. There are no split verdicts in Minnesota, and indeed. most states. We should be grateful for this standard. Criminal law is the most powerful area of law. It is the only mechanism under which the government can look at you and say “you’re not allowed to live in your home. You are hereby confined to a concrete cell for X amount of day/months/years. If you do not go, men with guns will take you.” That is the most invasive and powerful thing government can do to a person short of executing them. That should be done right, every time, and if there be any error, it should be error toward a guilty person going free. If you cannot say you detest a guilty person going free more than an innocent person going to prison, you stand in stark contrast the very foundation of liberty developed over literally thousands of years.
The esteemed British Judge William Blackstone, credited with influencing a great deal of foundational jurisprudence in the American Justice System, is perhaps best known for a singular principle affirming forever the criminal standard “beyond a reasonable doubt.” Justice Blackstone wrote: “It is better that ten guilty persons escape than that one innocent suffer.” (Commentaries on the Laws of England (1765)). Though eloquent, Blackstone is not the first to articulate this position. He was merely echoing “that generous Maxim, that ’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent.” (Voltaire, Zadig, chapter 6, p. 53 (1749)). Such mantra was reaffirmed by Benjamin Franklin. “That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.” (Letter to Benjamin Vaughan, March 14, 1785.—The Writings of Benjamin Franklin, ed. Albert H. Smyth, vol. 9, p. 293 (1906)). The roots of this principle at the heart of our justice system are most ancient. Regarding the destruction of Sodom, “Abraham drew near, and said, ‘Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? What if ten are found there?’ He [The Lord] said, ‘I will not destroy it for the ten’s sake.’” (Genesis 18:23-32). This is not limited to the Christian tradition either. “”Invoke doubtfulness in evidence during prosecution to avoid legal punishments” (Exegesis of Sunan at-Tirmidhi – the Book of Punishments, Abu `Isa Muhammad ibn `Isa at-Tirmidhi, 884 C.E.).
The virtue of this principle being applied to the unique American criminal justice system cannot be overstated. For if a guilty man go free, then shame be upon him anyway. Some other judge, God, Karma, what have you, or the guilty one’s conscience itself, may judge him and ultimately exert retribution and justice. However, if an innocent man suffer upon accusation and process, where then does the shame lie? Surely not upon him. It lies upon us, his peers, his system, his government. Though perhaps less than other nations, American history is replete with the imprisonment and even execution of the innocent. On the whole, is that not the greater tragedy? Bearing in mind the same criminal standard, proof beyond a reasonable doubt, is as applicable to shoplifting as murder, many innocent people are convicted daily whose cases never make the news. However the public narrative changes when the charges involve rape or murder. We want SOMEONE to suffer for the suffering of another. But that is not the standard. It is not even a consideration that is allowable by a jury.
What a jury is permitted to consider is the evidence presented at trial. The evidence presented at this trial was that Philando Castile was pulled over for an equipment violation, an out tail light. What was presented is that he loosely matched the description of a robbery suspect. What became also clear is that he had no involvement whatsoever with that robbery. The jury was permitted to hear all evidence related to this circumstance. The jury was also made aware that Philando was a lawfully armed citizen with a permit to carry a pistol. He was so carrying a pistol. He made it known to the officer that he was carrying a pistol. His girlfriend and passenger testified that Philando informed the officer of this. It was reported he stated “I’ll show it to you” or words to that effect. Yanez testified he saw the firearm. Officer Yanez testified that he told Philando to stop reaching for anything, a command he allegedly ignored. A firefighter responding to the scene, Torgeson, indicated that a firearm was located, but it was “deep” in Mr. Castile’s pocket. The passenger disputed that Castile was reaching for anything. BCA expert Lindsey Garfield stated the gun was not chambered, and the prosecutors emphasized that, if Mr. Castile represented the immediate threat that Yanez said he did, it would make no sense if a round was not in the chamber and the gun was not therefore “fire ready.” The jury was allowed to consider this factual dispute. Seconds after the announcement of a firearm and alleged offer to show the officer said firearm, officer Yanez fired seven rounds, killing Philando Castile. The last words of Castile were “but I wasn’t reaching”. Yanez testified he smelled burnt marijuana in the car, but fellow officer Joseph Kauser said he did not smell such odor. Nevertheless, Ms. Reynold, Castile’s girlfriend, testified they had smoked marijuana earlier in the day. Toxicology indicated THC in Mr. Castile’s bloodstream, but not in such amounts as would conclusively show he was under the influence of marijuana. The County presented expert testimony from Jeffrey Noble, an expert on use of force by police. He testified unequivocally that, in his expert opinion, Officer Yanez’s use of force was not justified and was unreasonable.
Despite this, numerous officers testified for the defense. Those officers were Elliot Erdman, Juan Cortez, Jon Mangseth, Jeremy Sroga, Grant Dattilo, Bryan Anderson, Zachary Wiesner. They testified largely to what you would expect an officer to testify to regarding, essentially, The Thin Blue Line. Things can happen in a matter of seconds. Officer training tells them they have to stay safe above all else. Etc. Etc. The defense also called use of force experts James Diehl and Joseph Dutton who testified that Yanez had “no other options.” Yet another expert, an Emanuel Kapelsohn, testified that Yanez responded reasonably to a potential threat to his life.
Candidly, this law office does not see eye to eye with the verdict in this matter. However it is worth noting that split verdicts are not acceptable in Minnesota, and that a jury is forced, to a point, to deliberate with a drive toward consensus. There is much in the physical evidence that conflicts greatly with the testimony of Yanez. Had that been hidden from the jury, then one could say, perhaps, that systemic rules prevented the jury from fairly considering the evidence. However, that did not seem to take place in this case. There has yet to be any description of some key piece of evidence which was withheld from the jury. Absent that, gross allegations that “out justice system is broken” and the like are completely unfounded.
Signs of Progress
The movement regarding police brutality against people of color cannot and should not be confined to any one name. This should be an issue that concerns all of us. But the to the extent that #Blacklivesmatter is the organic roots and primary driver behind this awareness, people would do well to remember the state of police accountability when the movement began. On July 14, 2017, Eric Garner was selling loose cigarettes, unpackaged individual cigarettes, on the sidewalk of a convenience store, which was a violation of city ordinance. After being approached by officers, Mr. Garner, with no violent threats or movements, loudly expressed his displeasure with police, who then said they were arresting him. After momentarily protesting this intention, he was placed into a chokehold and strangled to death. His murder (and yes, this firm is very comfortable calling the death of Eric Garner a murder) was caught on camera. His final words would end up one of the most trended hashtags on the internet, would come to occupy t-shirts and signs all over the nation, and become the battle cry for an entire movement. “I can’t breath.”
Police brutality against people of color did not start in 2014. Indeed, this had been an ongoing problem throughout our nation’s history, even after we had removed “official” barriers such as segregation and Jim Crow laws. The difference is, in this modern era, these incidents were being recorded. They were either recorded by bystanders with cell phone cameras, or nearby surveillance footage, or sometimes even the police department’s own footage. Suddenly, the issue gained exposure. More people began recording, and more media outlets became interested in such recordings. However, for years, these incidents had one thing in common: No prosecution. In the case of Eric Garner, or Michael Brown in Ferguson, Missouri, and other similar incidents of excessive force, there were no officers prosecuted. And in nearly all of those cases, the deceased was unarmed. That did not happen in this case.
The Ramsey County Attorney’s Office did not impanel a grand jury to pass the buck like so many other authorities. They moved swiftly, or at least relatively so compared to other cases involving officers, to investigate, charge, and prosecute Jeronimo Yanez. This is important. Five officers have been charged with crimes in Minnesota in the past year, including Jeronimo Yanez. This represents a paradigm shift, especially considering that Philando Castile was actually armed with a gun, unlike so many others. The Prosecution did not hold back. Unlike many half-hearted grand jury proceedings where prosecutors hardly even try to make a case, Ramsey County Attorney John Choi evaluated evidence and made the decision to charge Yanez with Manslaughter. And the Prosecution, as can be seen above, was aggressive. They truly did try to put Yanez away for the crime. For this alone, the County Attorney should be commended. Our community should be grateful that we have some people in positions of power that are not afraid to hold the gun and badge accountable. This represents a monumental step, and not every community in the United States can count on this type of accountability being pursued.
More broadly, true believers in justice should be heartened that the jury deliberated for 5 days. Many people want to simply chalk this verdict up to “racism.” That is not only insulting to the process, but quite frankly, is completely inconsistent with the amount of time the jury took, and the questions the jury asked during the trial. If it was just a verdict based upon Castile’s race, that would make no sense, because if there is one fact that was not in dispute, it was his race. That would not taken five days. Racists do not take five days to make a decision based on race. Indeed, as of this writing, Bill Cosby is being prosecuted for criminal sexual conduct and, like this case, the jury remains deadlocked after five days. Five days of deliberation after a six day trial means those were 12 very angry jurors who took a long time to agree. They came back several times saying they could not agree. That a jury took this job that seriously to examine all evidence and arrive at a verdict means that the presumption of innocence and true deliberation are alive and well.
Fundamentally, the defense expended a great amount of resources to overwhelm the jury with a volume of evidence. Three experts to the state’s one, along with several police officers and also character witnesses. The jury was generally allowed to consider the relative circumstances of the parties involved. Unlike most people, an officer has no “duty to retreat” when deadly force is employed in a supposedly defensive capacity. There was little evidence the Jury was not allowed to consider in this case. The Ramsey County Attorney truly did make a concerted effort to convict Yanez. They presented the expert they have used to defend officers in the past. In this case, he testified that the officer did not act reasonably. They presented numerous accounts which conflicted with Yanez’s recollection of events. But in the end, the volume of the defense presentation of expertise created enough doubt for the Jury. That does not represent a “systemic” flaw. There was no major piece of evidence withheld from the jury. Frankly, the physical evidence, the gun being deep within Castile’s pocket, it being un-chambered, the lack of any involvement with any robbery; much of this seems to speak against Yanez own testimony. Yet this was not withheld from the jury. The Jury was able to hear and see all of the conflicting evidence. It is important to remember, however, that it was not the burden of Yanez to prove anything. It is the burden of the State to prove its case beyond a reasonable doubt. Once the defense of “self-defense” is raised by any prima facie case, it then also becomes the burden of the State to disprove self-defense. This is not some special treatment given to Yanez. These are fundamental standards of criminal justice applied to all defendants.
The Larger Problem
It needs to be understood that this firm is not defending the actions of this officer or considering them in any way to be proper. Indeed, Alex DeMarco, as a lawfully armed citizen, like Philando Castile, has grave concerns about this officer’s response to a man who, by all accounts, was simply trying to explain in advance that he was lawfully armed out of some sort of perceived obligation to disclose this fact. (One is not obligated to disclose to an officer that one is armed and it may be best not to under most circumstances, but that’s a topic for another time). However, this is not a case where “the justice system” failed Mr. Castile. The question for the jury to decide was not, ultimately, what Mr. Castile’s actual intentions were. Rather, it was the burden of the State to demonstrate that Mr. Yanez’s espoused immediate fear of great bodily harm or death were unfounded or unreasonable. The legal process did not fail Mr. Castile. The larger system, our approach to policing and training, this is what has failed Mr. Castile and our nation at large. Racism is not what made the decision for this jury. Rather, the same grave deference to an officers “training and experience” that defense lawyers usually have to fight against in every case was actually used by the defense in this case to defend Yanez. We have discussed previously how we as of a society have normalized the concept of a militarized police force responding to our daily needs. Office Yanez himself was a student of “The Bullet Proof Warrior”. (You absolutely need to click on this link and the links therein to understand how evil this is).
This is the type of training that reinforces superiority, and frankly, gratuitous violence among officers. It promotes the idea their life is constantly in danger. That every day could be their last. That every traffic stop presents the immediate danger of being shot and killed, and that the foremost priority is their safety, no that of the community they are policing. This is not the fault of some conspiracy. It’s not the vault of some shadowy villain or Russian hackers. It is our fault. We all, in one way or another, in one generation or another, asked for this or have tacitly submitted to this for years. We have resigned ourselves to being policed by a heavily armed military force. We have chosen to error on the side of law and order rather than common sense and equity.
We talk a great deal about gun violence, gun control, but we somehow place innate and unquestioned faith in “officer training and experience.” Philando’s death, and the perceived lack of justice, is ultimately not the result of a systemic miscarriage of justice by people beyond us. It is the result of a system we demanded, accepted, and continue to exempt for normative considerations of violence. We instituted this a long time ago.
“”A heavily armed nation prone to violence finds it only reasonable to give law officers weapons and the authority to use them. In the United States, only a cop has the right to kill as an act of personal deliberation and action. To that end, Scotty McCown and three thousand other men and women were sent out on the streets of Baltimore with .38-caliber Smith & Wessons, for which they received several weeks of academy firearms training augmented by one trip to the police firing range every year. Coupled with an individual officer’s judgment, that is deemed expertise enough to make the right decision every time. It is a lie.”
David Simon, “Homicide. A Year of Killing on the Streets.” Owl Books, 1991.
Challenges Moving Forward
Many want to make the killing of Philando Castile an issue over simply race and the police. However it is worth noting that Jeronimo Yanez is not white, and that far more questionable shootings of citizens, even unarmed citizens, have involved white victims right here in Minnesota.
Did Castile’s race play a role in the actions of Officer Yanez? Possibly. There is no question that the perception of black males by police is a legitimate issue for discussion. Indeed, Philando Castile’s criminal history reveals an incredible number of traffic stops for mundane offenses, more than any white person would likely experience even in a lifetime. This encounter itself was the result of yet another. “Driving while black” is a very real phenomenon. Surely, armed while black carries with it a similar stigma with apparently greater consequences. There is no question that how police interact with people of color and how they are perceived needs to be addressed in every police department.
However the matter also presents larger considerations, as mentioned above, of how an armed band of police officers go about stopping traffic offenders for any one of hundreds of potential violations and how they interact with them. Moreover, this matter raises issues of how police deal with a lawfully armed populace. The number of permits to carry a pistol continue to grow year after year. When dealing with armed individuals, perception can play a very large role. Picture, if you will, a person of any race open carrying a firearm in a grocery store wearing dress pants, dress shirt, and a tie, with a neat haircut and being clean shaven. Most people would likely presume the person to be a plain clothes officer. Contrast that with the exact same person coming from the gym at a night dressed in sweatpants and a tank top with a revolver tucked in the waistband at a gas station. That would likely induce a different reaction. Perception will always be a factor with regard to armed citizens and, indeed, all citizens.
In summation, race is a critically important issue in all areas of American life, but if we want to actually keep people safe, we need to move the dialogue beyond simply how young black men are treated by police officers. Treating people of color the same as white persons is not a sufficient goal, because the frank truth is the entire paradigm in which police interact with society has shifted from one of community service to one of forced order and obedience. None of these acts of violence, against anyone of any color, would be possible but for the mandate and the weapons we give to police. While racism certainly remains a problem in the United States, there is nothing to indicate that there is any greater racism among officers than that of the general populace. The difference is that most of the population is not armed with four weapons on their belt and two more in their car. The difference is that most of the population is not charged with pulling over cars with an out tail light, or cracked windshield, or an object hanging from the rear view mirror, or failure to wear a seatbelt, and so on. No other nation in the world has a 24 hour patrolling band of militarized officers responding to everything from “shots fired” to the above mentioned traffic violations. No other nation has a criminal and traffic code as extensive as the United States and the States within. When we pass those laws, and keep increasing police officers, we naturally increase the number of daily civilian interactions with police officers. When we arm those officers, we are by definition increasing daily interaction with an armed force. Those interactions will always have a wide scale, ranging from totally innocuous to remarkably confrontational. That invariably results in more people being unnecessarily shot by police. The gun control lobby is fond of saying “the presence of a gun increases the escalation of any conflict.” That is no less true for police officers than civilians. As long was we continue to arm officers and assign them to thousands of traffic violations and disturbances, more of those conflicts will result in people dying. Police are not angels, and criminals are not demons. We are all fallible human beings who deserve to live.
In this case, there is no systemic failure in the justice system. The Jury was permitted to consider all of the evidence and fact available. There does not appear to be some key piece of evidence that was suppressed or anything that was hidden from the jury. The reality is that the jury was a product of what we as a society have accepted. Wide latitude and deference of judgment is given to police, not simply by the law, but collectively as a society. In effect, Officers are assigned an unspoken separate standard of “reasonable” fear, which is reinforced by their training to such an extreme that, frankly, that fear has become constant and irrational. This Jury treated this defendant differently because he was a police officer, and not because they were instructed to do so, but because they have been, as Americans, infused with the concept that officers are trained individuals who get to respond to danger differently. You cannot blame the County Attorney for that. The Ramsey County Attorney prosecuted Yanez with utter tenacity. You cannot blame the judge. You cannot blame the Statutes of Minnesota. It is convenient to blame some force beyond ourselves that we are powerless against. It is convenient to just dismiss the jury as a bunch of Klansmen. We do that to take the heat off the reality that none of us want to confront, and that is that our sheltered existence has become dependent upon a 24 hour roving band of heavily armed soldiers, and that this same existence is responsible for the incidents of police violence against “others.” This is the result of a rubric of law enforcement which we have tacitly asked for or at least accepted. So long as we continue to hand to law enforcement a broad mandate to patrol 24 hours a day and respond to every phone call and every malfunction on a vehicle, and so long as we continue to heavily arm them and train them as “warriors”, this will be the result. The change begins not with attempting some idealistic colorblind society that will never materialize. It doesn’t begin with shifting the burden of proof from the State to the defense or creating some alternative self-defense standard. Instead, we must recognize our own collective value as a society, and value the individuality of those exceedingly different from ourselves. We then must reject the concept that law and order is of greater value than liberty, and understand that a heavily armed police force with a broad mandate does not make us safer and, indeed, perhaps poses a grave danger with little to no legal recourse.