Jena Six: Law Bloggers Cite Confusing Facts
Posted on Sun Sep 23, 2007 at 04:28:03 PM EST
Tags: Jena Six (all tags)
The number of law-bloggers hesitant to chime in on the Jena 6 case is growing. One reason given: The facts are not only confusing, but in several significant instances, in dispute. ESPN has this pretty good primer but it's hard to get the narrative from just one source, there are just too many variations.
Earlier this week there was Instapundit and Orin Kerr. They are now joined by Ann Althouse.
So, are the facts confusing or too disputed to pass judgment? Yes and no.
More...
Like other bloggers, I got a few emails about the case before the march. It wasn't until the day of the march that I did my own research. I spent more than three hours reading news articles online and on Lexis and reading blogs. I also watched the CNN one hour special. Even afterwards, I was too unsure of key details to do anything but write a post linking to news sources.
The MSM coverage was not particularly helpful. This is not about a singular event but a course of events, including criminal acts, that culminated in yet another criminal act. But too many news articles glossed over critical components.
There's also a lack of double-sourcing or other reliable means available for resolving the disputed facts with respect to several essential components of the story.
While I still can't make judgments as to much of the story, I have no problem declaring the case one of prosecutorial over-charging and abuse of a system that allows prosecutors discretion in charging juveniles as adults. I think the only reason the kids were charged with such serious felonies was to get Mychal Bell, then a juvenile, into adult court.
From details in this account of the trial, I also am confident in saying Mychal Bell did not receive a fair trial. His conviction, though, has been vacated on other grounds by the court of appeals. Presumably, those mistakes won't happen at his retrial, if there is a retrial.
I'm not jumping on a hate-crime law bandwagon that says the white kids who hung nooses should have been charged with a hate crime solely because of those acts. I'm opposed to criminalizing acts based on thought. If there's proof the kids acted with the intent to intimidate others, then charge them with criminal intimidation. Punish the act, not the thought behind it. Also, the noose incident occurred months before the series of physical confrontations. It obviously triggered hostilities, and justifiably so, but legally it can't justify physical retaliation, particularly months later.
The key legal question being asked is whether the Jena Six have been or are being prosecuted unfairly based on racial considerations. Unfortunately, many of the facts necessary to make the determination are in dispute, confusing or unverified by impartial sources.
The critical sequence of legal events begins not the day of the noose hanging, but on November 30, the day the school is torched. Everyone agrees there are no leads to the arson. But prior to that, this event needs mentioning:
Incident number one in dispute: The assembly on September 6, one week after the noose incident, at which the the District Attorney told the students that with one stroke of his pen he could ruin their lives. The DA says he was addressing everyone with that remark. The black students said he was looking only at them when he said it.
Returning to events occurring after the November 30 fire:
Incident number two: the party December 1, the day after the school burned down, at which black student Robert Bailey was assaulted. Justin Sloan, a white student, was charged with misdemeanor battery and given probation. As to complaints that Sloan was treated differently than the Jena Six, these questions arise: Was Bailey assaulted only by Sloan or by others as well? There are versions out there that say it was just Sloan and others that say he was hit with a bottle and attacked by a group. How badly was he injured? Again, there are differing versions and Bailey didn't seek medical attention. It's hard to determine on these facts whether Sloan got a slap on the wrist or others should have been charged. If either were the case, it would provide support for those contending the DA routinely prosecuted blacks involved in fights more harshly than whites.
Incident number three: the encounter at the convenience store on December 2 between Bailey and some black friends and Matt Windham, who is white. The only facts in agreement are that Windham, after encountering Bailey and friends outside the store, went to his car and pulled out shotgun which Bailey and friends wrestled from him. Bailey was charged with robbing Windham and stealing the firearm. Windham wasn't charged.
Facts unknown or in dispute: Whether Windham, who had attended the school a few years earlier, was present when Bailey was attacked the night before? Did he participate in that assault or egg it on? Was he injured during the convenience store scuffle to the extent he needed and obtained medical care at a hospital? One local news report indicates so, but I haven't seen that verified.
Incident No. 4: The attack of Justin Barker at school on Dec. 4. The eye witnesses disagree as to whether Mychal Bell was the one who hit Barker and knocked him unconscious. It was an all white jury. His lawyer presented no evidence, despite there being a witness, a coach, who would have said Bell was not the initial attacker. Eyewitness accounts varied greatly of everything from the sequence of events to who said what to the clothes the attacker was wearing.
Did the DA charge the youths with attempted second degree murder and conspiracy to commit aggravated battery (or conspiracy to commit second degree murder, whichever it was) just to get Bell into adult court? I think the answer to that is yes, but assuming so, was it because of his prior record or because he is black?
Did Justin Barker incite the attack on him by using racial epithets in commenting on the assault on Bailey at the party? If so, should the DA have factored that into his decision on which charges to bring, or is that only a matter that should be considered in mitigation of punishment by a judge?
No. 5: Why is Mychal Bell's bail so high? Is it because of his criminal record or because he's being treated unfairly due to his race? Is Bell a repeat violent criminal? Not in my view. His four prior convictions are two simple batteries, months apart and two misdemeanors for damage to property. Regardless of how the law in Louisiana technically categorizes him, I don't think he fits the bill of a violent offender.
But, he was on probation for those offenses at the time of the Dec. 4 beating. Is that the reason his bail is high and prosecutors object to his release? If so, there's nothing unusual about that.
There are no ready answers to these questions without a review of police records and trial transcripts, which have not been made available. That's what makes this case so difficult to write about.
Does Jena have a race problem? I'd say it does now. Did the DA unfairly overcharge the Jena Six? Yes. Was it due to race? I don't know. Knowing whether the D.A. directed his assembly remarks to all students or just the black ones, as they maintain, would go a long way in resolving this. But, there's no video and there's disagreement about it.
Should Matt Windham have been charged with pulling a gun on Bailey and friends? I think so. I see no justification for that act. Who are the supposed eyewitnesses to this incident who back up his version of events? If Windham should have been charged and wasn't, the only factor at play I can see is race. (And minor question: Is he related to then-school principal Scott Windham?)
Should those who attacked Justin Barker be tried for battery? Yes. Should they be charged with more serious offenses or as adults? No.
Right now, the two biggest flaws I see from a legal (not social) perspective are prosecutorial abuse in charging juveniles as adults and that a white kid who pulled a gun on black kids didn't get charged with any crime. That incident is particularly suspect to me.
I'm sure some commenters will take issue with this presentation of events and case details. I've tried to separate sourced and verified facts from those found on sites that interpret, particularly with a specific agenda. It's not an easy task, and in the end, I conclude there's no just cause for criticizing law bloggers for not rushing in to condemn.
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