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A Seething Sense Of Injustice

protesters with signs reading No Justice, No Peace; I Can't Breathe; and a partial sign reading When You Serve and Protect
Minneapolis march in solidarity with Baltimore, April 2015. Photo by Flickr user Fibonacci Blue.

The seething sense that our justice system devalues the lives of black Americans can’t have been helped this week by a pair of decisions demonstrating how myopically judges tend to look at the issue.

A little over a year ago, Freddie Gray’s death from injuries he sustained while in police custody triggered protests in Baltimore and outrage nationwide. Yesterday a Baltimore circuit judge acquitted Officer Edward Nero of all counts related to his alleged role in Gray’s arrest and subsequent death. Nero’s trial is the second of six connected to Gray; the first ended in a hung jury, with a retrial scheduled for September, making Nero’s acquittal the first true verdict. Nero will remain on desk duty while the police department conducts an internal investigation, but his day in court is over.

Nearly simultaneously, the U.S. Supreme Court ruled 7-1 that Georgia prosecutors had deliberately excluded black jurors from a 1987 murder trial, despite a Supreme Court ruling the year before that explicitly barred prosecutors from doing so. The all-white jury convicted Timothy Foster of murder and sentenced him to execution.

Foster’s prosecutors systematically excluded African-Americans from their jury pool, highlighting black prospective jurors’ names in their notes and marking them with the letter “B.” Their misconduct did not emerge until 19 years later, after an open records request divulged prosecution notes. But for the inefficiencies of our justice system, Foster might have been long dead by the time these notes came to light. Or the prosecutors might have destroyed their notes before they became subject to disclosure, again potentially resulting in Foster’s unjust death.

Nero had the good sense to opt for a trial before a judge, rather than a jury of local citizens. The judge looked narrowly at the circumstances involved in the incident and said there were “no credible facts” to show that Nero was directly involved with Gray’s arrest. He ruled that because Nero merely helped his fellow officers to apprehend Gray and place him in the van, rather than taking the primary role in either of those actions, he bore no culpability for the fact that a heretofore healthy 25-year-old emerged from that van ride with a fatal injury to his spinal cord.

By that logic, the lookout and driver of a getaway car in a bank robbery that ends in murder bear no responsibility for the deaths of the victims, either. That is not the way “justice” is usually administered in this country. Except, too often, when the perpetrators of violence wear police uniforms and the victims have noticeably pigmented skin.

The more egregious of Monday’s two rulings is that of the Supreme Court – not because the decision was incorrect, but because it was breathtakingly insufficient. The majority opinion, written by Chief Justice John Roberts, did not overturn Foster’s sentence or conviction outright; it simply ordered the Georgia Supreme Court to revisit the decision to deny Foster’s original petition in light of the high court’s finding of the prosecutors’ misconduct. Justice Samuel Alito, in a concurring opinion, agreed that prosecutors had violated the law but argued that procedural law may prevent Foster from challenging the use of race in his trial’s jury selection process at this point. It seems likely, but not certain, that Foster will at least get a new trial. The uncertainty merely adds to the injustice of his original, racially biased prosecution.

Foster’s case illustrates why it is long past time to overturn the death penalty itself. If a man can be sentenced to death by an illegally chosen, racially constituted jury a year after the nation’s highest court has placed such conduct squarely off limits, then the problem is with the penalty itself, not merely how it is administered. It was just dumb luck that Foster is alive today to see the prospect, if not yet the certainty, that his sentence will be overturned. And in all likelihood, the prosecutors who ignored the rules in order to try to take his life will never face any sort of consequence for their behavior.

Nor can we discount the many cases in which prosecutors left no concrete evidence of racially motivated jury selection, while still engaging in the prohibited practice. If Foster’s prosecutors had simply exercised preemptory strikes against black jurors based on an unspoken understanding or private verbal exchanges, there would have been no notes for an open records request to uncover.

As for Freddie Gray, the courts still have not come down squarely behind the idea that authorities become responsible for protecting the health and safety of anyone in their custody, no matter the circumstances or duration. The average citizen is told: If you see something, say something. Nero may not have been the final decision-maker in Gray’s arrest or the way he was placed in the van, but he chose to say nothing and walk away all the same.

Are observers seething over the lack of justice in our justice system this week? Of course they are. They have two glaring examples to contemplate.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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