Claiming the Moment

Guest Post - By Malcolm P. Rockwell

I’ve watched and listened to a lot of what is being done and said during the on-going protests over the murder of George Floyd. I’m sympathetic to the cause. I’m sick and fucking tired of cops killing unarmed black men for no reason other than that they can. I’m sick and fucking tired of the police union supporting its members regardless of circumstances when it’s evident to even the dullest among us that such support is an endorsement of immorality, criminality, and unbridled authoritarianism. I’m sick and fucking tired of mealy-mouthed prosecutors who will up-charge common street criminals with every charge imaginable, but can almost never find a basis to charge murderous cops with even the most lenient of charges despite overwhelming evidence to the contrary. And I’m sick and fucking tired of my countrymen and women who can sit on a jury, be presented with undeniable evidence of crimes committed by cops against people of color, and yet repeatedly turn a blind eye and give the cops a pass. And as evidenced by the tens of thousands of people who have been pouring into the streets for the past twelve days protesting against police violence, I’m not alone. 

But here’s the thing. Marching in the streets day-in and day-out holding up placards, chanting slogans, staring down cops, violating curfew, and getting arrested is great for galvanizing support for the cause, but it’s ultimately not going to get us anywhere near where we need to be. Neither the current occupant of the White House nor his political enablers at the federal, state, and local level give two shits about street protests. Especially protests by young people, people of color, queers, atheists, dope-smokers, and political progressives. If you are anything other than a straight, white, God-fearing Christian conservative, you are dead to these people. They are not afraid of you marching in the streets. That they can and easily will handle by leveraging the awesome power of the state security apparatus. Those security forces will happily pepper-spray you. They will gladly club you into submission with batons. They will arrest and deprive you of your liberty while they rough you up in the process. And if you’re black, those forces will kill you. By hook or crook, you will be brought to heel.

But you know what these sick bastards are afraid of? You know what keeps Trump up late at night hunkered down in his bunker rage-tweeting while he stuffs his morbidly-obese gut full of more fast food? You know what scares the living shit out of treasonous Moscow Mitch McConnell? You know what Tom “I’m a fucking unapologetic fascist” Cotton fears the most? They fear the time when everyone you see in the streets today, and everyone else in solidarity with those people, storm the polls to vote. That is what makes their anti-American blood run freezing cold. Because they know if that happens, the gig is up, the battle is lost. Probably forever.  

That explains why they are perpetually trying to make it more difficult for certain communities to cast a ballot. That is why they constantly attempt to limit the franchise and make participation in elections more difficult (see, the recent Georgia state primary). They are not only afraid of people voting, they actually despise the whole filthy idea of it. So they pull stunts like opposing mail-in ballots over contrived concerns about “voter fraud,” even though they and their supporters have been voting by mail for years (and, ironically, in the case of both Donald Trump and his personal propagandist, Kayleigh McEnany, illegally in 2016). They reduce the number of polling places in minority and underserved neighborhoods and then object to keeping those same polling places open long enough to allow the predictable crush of lined-up voters to cast their ballots. They implement rules that make it almost impossible for young folks attending college away from home to vote. And they place insurmountable obstacles to voting in front of folks who have been incarcerated, have served their sentence, and whose voting rights have been restored. They do this because they don’t want uppity people of color to vote. They don’t want overly-idealistic young people to vote. They don’t want icky gays to vote. And they certainly don’t want scary Muslims and immoral atheists to vote.  Because despite all of the bloviating about the high-minded ideals which are the bedrock of our constitutional republic, despite the incessant blather about the greatness of America, despite the elitist lecturing to the rest of the world about the superiority of western-style democracies and government “of, by, and for the people,” these charlatans don’t believe in any of it.   

So it is imperative that the movement transition from simply repeatedly shouting what it wants from those who refuse to hear, to replacing these dangerous fools with those who have a more sympathetic ear and who will take steps to effectuate real change. And the only way that is going to happen is if the hundreds of thousands of people who have taken to the streets in support of “Black Lives Matter” participate en masse in the November elections. As a practical matter what that means is that all these folks, and all of their sympathizers and supporters must register to vote. And then they must follow through and actually vote come Election Day. If that happens, Trump will be removed from office (and then hopefully prosecuted and imprisoned). The Senate will turn blue. And the House will turn a deeper shade of blue.

But it’s not just the federal offices that are important. With a dotard like Trump at the helm, it’s really easy to forget about the down-ballot races at the state and local level. But these races are crucial, perhaps even more so than the federal races, to effectuating changes to policing which is the province of state and municipal governments. If the Black Lives Matter movement wants any real chance of succeeding at this, the pro-police bias and monopoly at the state and local level must be broken. And the only way to do that is to remove and replace current office-holders who are responsible for and who perpetuate the current state of affairs.

I know, I know. Voting isn’t as thrilling as facing off against soldiers and cops clad in riot gear. It’s not as sexy as marching in the mean streets and chanting. And it’s not as Instagram-able as a selfie at a mass protest. But this isn’t about thrills and sex and Instagram goddammit! This is about change. And it’s time to put in the easy work to ensure that change occurs.

Here’s something else. You may not be excited about Joe Biden. Maybe you think he’s too old to be the President. Maybe he isn’t progressive enough for you tastes. Maybe you’re displeased with some of his past policy positions or statements. And maybe you’re not convinced that he’s all there all the time. And maybe you’re right.

But you know what? None of that matters when the alternative is a despot. None of that matters when Bill Barr is the U.S. Attorney General. None of that matters when our current trajectory has us headed for tyranny and authoritarianism. None of that matters when the fate of the republic literally hangs in the balance. 

Beyond that, it is pure folly to believe that progress can or will occur quickly and without a changing of the political guard. Because for that to happen, the folks that currently hold the reins of power would have to respond favorably and proactively to the demands currently emanating from the street. That is not going to happen. These politicians were not put in positions of power and authority to serve the constituency represented by Black Lives Matter. They were elected to maintain the status quo and to serve the interests of the folks that put them in office in the first place. And guess what? If you support Black Lives Matter, chances are you ain’t those folks. 

So yeah, replacing Trump with Biden may not be the perfect solution. But it is a substantial and concrete step in that direction. And perfection cannot be the standard anyway. Because the perfect candidate is a unicorn. The perfect candidate doesn’t exist. They never have and never will. So expecting one, and then sitting out the election when one predictably doesn’t materialize, is not only unrealistic and counter-productive, it actually damaging because it plays right into hands of the entrenched powers-that-be. It’s exactly what they want and exactly what they hope and pray that you do.

So if you are not registered to vote, go out and do that today. Make certain that your friends, family, co-workers, social contacts, and fellow activists and agitators all do the same. And then five months from now, on Tuesday, November 3, 2020, follow through and cast your ballot in the Presidential Election. It is the single most important thing that you can do to honor George Floyd and ensure that he did not die in vain on the sidewalk under the knee of a racist cop.

Charlie Hebdo We Are Most Certainly Not

One of the more predictable consequences of the recent and senseless shootings in Paris is the sudden proliferation of folks around the world claiming “Je Suis Charlie” in solidarity with the fallen cartoonists at the French weekly Charlie Hebdo. In the immediate aftermath of the tragedy, Facebook, Twitter, Instagram, and other social media were all abuzz with folks proudly asserting that they were Charlie Hebdo. I was one of those folks. The statement “I am Charlie” is meant to serve as both a condemnation of the cowardly acts and mindset of those who claim the need to avenge perceived insults to a surprisingly sensitive prophet, and a poke in the eye to the numerous adversaries of free expression through the message that “although you can you murder the messenger, you can never murder the message.”

Initially, I was heartened by the belief that my fellow countrymen and countrywomen were so fervently supportive of freedom of expression that they would elevate that right over another’s “right” to not be offended.  Whether they were aware of it or not, all of these new “Charlies” I surmised, must subscribe to the idea embedded in the quote commonly misattributed to Voltaire that "I disapprove of what you say, but I will defend to the death your right to say it."

Upon further reflection, however, I think there are probably far fewer Charlie Hebdos in the United States than perhaps the reaction to the terrorist attacks in Paris would suggest. I’ve never been a huge fan of David Brooks, but as he rightly points out in “I Am Not Charlie Hebdo,” his most recent Op-Ed column in the New York Times:

“The journalists at Charlie Hebdo are now rightly being celebrated as martyrs on behalf of freedom of expression, but let's face it: If they had tried to publish their satirical newspaper on any American university campus over the last two decades it wouldn't have lasted 30 seconds. Student and faculty groups would have accused them of hate speech. The administration would have cut financing and shut them down.  

Public reaction to the attack in Paris has revealed that there are a lot of people who are quick to lionize those who offend the views of Islamist terrorists in France but who are a lot less tolerant toward those who offend their own views at home.”

You really don’t need to look that far and wide to find concrete examples of what David Brooks is talking about. Just this morning I read that the Federal Trade Commission is now getting involved in the kerfuffle over the naming of the NFL’s Washington Redskins. Seems despite its use by the team since 1933, the name is suddenly so inappropriate that we’re going to leverage the considerable power and resources of the federal government to quiet the team owners (or at least force them to change the team name to something more acceptably benign). But instead of being aghast at this development, a good number of us are cheering it. The name “Redskins” is offensive after all. That ought to tell you something about how dissimilar we in this country are to Charlie Hebdo.

But that’s really not the same thing you might be telling yourself.  Really? Then how about the Westboro Baptist “Church” and its merry band of idiots? You know, the inbreds from Kansas that routinely show up to protest soldier funerals with signs proclaiming “God Hates Fags” and “Thank God for Dead Soldiers.” Despite the patent offensiveness of these backwards-ass fucktards, do the collective “we” defend their right to publicly express their misguided and delusional ideas? Hardly. There have been massive efforts supported by most of the population to quiet these folks because, well, they are offensive. And we find being offensive so offensive that we have passed a number of federal and state laws, the ultimate objective of which is to silence these fools.  When Westboro was sued by the family of a soldier whose funeral they picketed, and the case reached the United States Supreme Court, forty-three (43) U.S. Senators (or 86% of the senate chamber) and forty-eight states plus the District of Columbia (an astonishing 96% of the states) filed amicus briefs which opposed Westboro. In an 8-1 decision, and much to our collective dismay, the Supreme Court ultimately vindicated Westboro’s right to offend, but the message from society at large was clear: we are not Charlie Hebdo. 

And while we’re on the subject of “fags,” try using that term for any purpose or in any context other than self-identification. If we’re really so immune to offense and supportive of free expression, publicly invoke the phrase “that’s so gay” to describe something that is lame and gauge the reaction. How about the “n-word.” Again, unless you’re self-identifying and thus get a free pass, we collectively find the term so outrageously offensive that we can’t even say or write the word regardless of context. In fact, humorously but sadly, the word is so objectionable that we attribute guilt by association to other words that sound suspiciously like the “n-word” but have absolutely no connection to it or its meaning (for example, the word “niggardly” which means “cheap” or “chintzy”). That, of course, is not to say that the n-term is inoffensive. It is, but that really isn’t the issue.  

There are so many examples of society (the collective “we”) wanting to stifle and/or punish speech or ideas that we, or some of us, find insulting or offensive that I could fill a number of pages discussing them. We routinely still ban books (including such subversive titles as Captain Underpants) because they are sexually explicit, contain offensive language, contain violence, involve homosexuality, pertain to the occult or explore satanic themes, are “anti-family,” and/or are otherwise “unsuitable.” We attempt to squash artistic pieces like “Piss Christ” because while it is perfectly acceptable and even fun to offend Islam, it is most certainly not acceptable to offend Christianity or any of its adherents. Music, particularly rap and metal, is a regular target of government and societal censors. The banning of speakers on college campuses, gleefully supported by supposedly free-minded students and faculty, is pervasive. And then some of those faculty members and students are themselves punished for expressing views or publishing content that our societal minders find inappropriate. Karma’s a bitch ain’t it? 

Yeah, yeah, I realize that we generally do not share the point of view held by the now dead fanatical gunmen in Paris that offensive speech is punishable by death. But no matter how you rationalize it, we generally do share the belief that offensive speech should be punished and subverted. It’s just a matter of degree. I’m not suggesting that difference in degree is an invalid basis upon which to make distinctions. But on a certain level, it is a distinction without a difference here that ultimately compels the inconvenient and uncomfortable conclusion that the Paris terrorist are certainly not Charlie Hebdo and neither are we.

Learning from Nick Yarris

Last Saturday night, I jumped on the Metro Red Line in North Hollywood to make my way down to the CIP vigil at Los Angeles City Hall the purpose of which was to urge Governor Jerry Brown to grant clemency to the California 12. I didn’t have anyone to go with, so I went it alone because I thought it important to be there in both body and spirit for the families whose sons and daughters have been rotting away in prison for far too many years. It’s easy to be lazy about folks like the California 12 when you have no connection to them other than through newspaper articles, online blogs, media reports, and other abstract sources. That apathy is even more pronounced during the holiday season when the traditional focus is on one’s own family and friends. But I’d been following the story of the California 12, and was encouraged by CIP’s recent success in gaining freedom for Michael Hanline, so I mustered up the energy and headed for downtown.

When I arrived at City Hall about thirty minutes early, there were a bunch of folks milling about in anticipation of the event to come. Half of these folks were obviously associated as students or otherwise with CIP and were clustered about in groups of blue and yellow XONR8 t-shirts idly chit-chatting with one another. The rest of the folks appeared to be primarily the family and friends of the California 12. They were easily identifiable by the over-sized photographs, posters, and banners that they had brought to the vigil. There were the parents of Kimberly Long. The family of Dolores Macias. The family of Quintin Morris. The spouse and supporters of Alan Gimenez. The family and friends of Guy Miles. They were all there to support their wrongfully incarcerated loved ones. Looking around, I realized that I knew absolutely no one. So I stood there in the faint glow of City Hall’s lights waiting for the festivities to begin while LAPD helicopters and muni buses competed for obnoxious noise supremacy. 

Then an energetic and intense guy with a clean-shaven head and steely eyes walked in front of me and suddenly stopped. I had observed this guy making the rounds and mingling with all the groups clad in XONR8 t-shirts since I arrived, so I figured he was a CIP mucky-muck who was in charge of insuring the event went off smoothly. He offered his hand in greeting and I reciprocated. As I did, he said something entirely unexpected. Instead of introducing himself, he asked if I was an exoneree. Instinctively and immediately I chuckled out loud at the notion and then demurred, telling him that I was just some guy who supported the cause. Although I wasn’t thinking it at the time, subconsciously I must have found the idea of being an exoneree so patently preposterous that I actually laughed out loud. Me, an exoneree? I don’t even fit the profile!

Almost immediately, however, my conscious self understood what my subconscious self had just done but it was too late. The bald-headed fellow understood too, but he was too much a gentleman to call me on it. So he offered some words of encouragement about future exonerations, thanked me for showing up, and then slipped away.

Later that evening, as Justin Brooks was introducing the families of the California 12 as well as some notable dignitaries, I realized the severity of my gaffe. For I learned then that the closely-shorn fellow whom I had probably insulted earlier in the evening was none other than Nick Yarris. As you probably know, Nick Yarris is himself an exoneree who was wrongly accused, convicted, and incarcerated for a brutal rape and murder committed in Pennsylvania in December of 1981. 

It was a moment of utter embarrassment. I had dismissively, although unconsciously, laughed in the face of a guy who was compelled to sacrifice 20+ years of his life behind bars for a crime he didn’t commit. But it was also a moment of profound enlightenment. For at that moment, the scales fell from my eyes, and I came to the realization that what happened to Nick Yarris and Michael Hanline and Rodney McNeal and Kiera Newsome and Ed Contreras could very easily happen to me. It could happen to any of us. I had often preached the gospel of “there but for the grace of God go I,” but that was obviously something that I just said. Mere window dressing to impress and present myself as concerned and understanding to the outside world. But as I stood there looking around at the photographs of the California 12 and listening to their stories as told by their supporters, reality, conjured up by Nick Yarris, stepped up and slapped me hard. No matter how comfortably convinced I had been that wrongful convictions are something that only happens to abstract “others,” anyone regardless of race, gender, or economic status can conceivably end up as fodder for the criminal justice meat grinder. Injustice does not discriminate. Even against me.

So that was my moment of clarity as I stood on the darkened south lawn of Los Angles City Hall last Saturday evening. Although he has hopefully forgotten the encounter, I suppose I owe Nick Yarris an apology for being such a Neanderthal. But I also owe him a debt of gratitude for forcing me to see what was right in front of me but was otherwise invisible. Because of my humiliating encounter with Nick, I now have a greater understanding and appreciation of the really important, in-the-trenches work that the good folks at CIP do on a daily basis. I also more deeply feel the despair and the urgency of the families who seek the release of their unjustly imprisoned loved ones. In a country that holds itself out to the rest of the world as a beacon of fairness and justice, the fact that the California 12 are still sitting behind bars is an egregious perversion of the worst kind.

Let’s Just Kill Michelle, Anyway

People should be rioting in the streets all over America right now in seething anger over the disgusting farce that is and was the Michelle Byrom case. Although wrongful conviction cases have become so common these days that they often evoke nothing more than a disbelieving shake-of-the-head from society-at-large, what sets this particular case far apart from most others is the prosecuting state’s insistence on executing Michelle Byrom despite overwhelming evidence that she is probably innocent. It is the most morally repugnant, egregiously unfair, and constitutionally suspect case that I can recall reading about in a long, long time.

The underlying facts of the case are somewhat convoluted, but Ronni Mott, a reporter with the Jackson Free Press does an admirable job summarizing them in her eye-popping article “An Innocent Woman? Michelle Byrom v. Mississippi.” The case involves the murder of Michelle Byrom’s husband, Edward Byrom, Sr. (“Ed”), on June 4, 1999 at the hands of his own son Edward Byrom, Jr. (“Junior”). 

By all accounts, Ed was a despicable character. At age 31, he married 15 year old Michelle when she fled her family home to escape from a sexually abusive step-father who doubled as her pimp. Unfortunately for Michelle, however, Ed was not her knight in shining armor. Far from it, he was just another jerk who verbally and physically abused Michelle at every opportunity. He even forced her to have sex with other men which he videotaped. Michelle tried to leave Ed, but predictably he threatened violence which kept her in check. As Andrew Cohen at The Atlantic points out, “He was plainly savage with her.” In fact, Ed and the step-father were so savagely abusive of Michelle that she became mentally ill.

Eventually, the unhappy union between Ed and Michelle produced son Junior. For most folks, the birth of a child is an amazing and transformative life event. Not Ed. He simply viewed his son Junior as another family member who he could berate and abuse right along with Michelle. Thus, Ed would regularly strike Junior and subject him to unfathomable verbal abuse, routinely telling him “You were a fucking mistake to begin with!”

On the day Ed was killed, he drove Michelle to the hospital because she had double-pneumonia. He then returned home. In a letter he penned to Michelle, Junior described what happened next:

"I sit in my room for a good 1½ hours, and dad comes in my room, and goes off on me, calling me a bastard, nogood (sic), mistake and telling me I’m inconciderate (sic), and just care about my self, and he slaps me, then goes back in his room. As I sat on my bed, tears of rage flowing, remembering my childhood, my anger kept building and building, and I went to my car, got the 9mm, and walked in his room, peeked in, and he was asleep. I walked about 2 steps in the door, and screamed, and shut my eyes, when I heard him move, I started firing.

When I opened my eyes again, I freaked! I grabbed what casings (sic) I saw, and threw them into the bushes, grabbed the gun, and went to town. I saw Joey, told him to hide the gun, and he said he’d take it to his spot, which I knew from when I’d sell him stuff, and went and told mom that dad was dead, and before her terry (sic) eyes could let loose I ran out of the hospital, and headed for the house, I was so confused."

Although Junior confessed to killing Ed, led police to the murder weapon, and was the only person with gunpowder residue on his hands, Tishomingo County prosecutors saw the killing as a murder-for-hire conspiracy between Junior, his friend Joey Gillis (“Gillis”) as the shooter, and Michelle as the mastermind determined to rid herself of an abusive husband. This cockamamie theory was derived from one of the many “bullshit stories” Junior told to police after they promised him a reduced sentence in exchange for testimony against his mother. It was bolstered by “admissions” Michelle made to police when they questioned her in the hospital while she was under the influence of a number of powerful drugs. Those “admissions” involved nothing more than Michelle parroting back what investigators had told her in order to protect Junior from being left “hanging out there to bite the big bullet.”

So with that evidence, Michelle was charged, prosecuted, convicted of capital murder, and sentenced to die. But that is only half of this three-ringed circus of a story. The attorneys assigned to represent Michelle at trial were shamefully incompetent. They had never tried a capital case before. They presented no witnesses in Michelle’s defense. They advised Michelle to waive her right to have a jury determine sentencing, and then when it came time to present the judge with evidence to mitigate her sentence, they presented nothing in support of her cause, naively believing that this would provide constitutional grounds for an appeal.

Predictably, they were wrong. On appeal, the Mississippi Supreme Court upheld her conviction by a 5-3 vote. In dissent, Justice Jess H. Dickinson, although concurring with majority on the issue of Michelle’s guilt, observed: “I have attempted to conjure up in my imagination a more egregious case of ineffective assistance of counsel during the sentencing phase of a capital case. I cannot. In recommending that Byrom waive her so-called right to have a jury hear the mitigating circumstances, and in presenting to the court little in mitigation of the death penalty, I believe Byrom’s counsel were certainly ineffective. I further believe justice was subverted in this case.”

So exactly how was justice subverted aside from the fact that Michelle Byrom’s trial was flagrantly flawed and unfair? To start, the trial judge who sent Michelle to the execution chamber because she was a “schemer” whose sole concern was profiting from her husband’s death, knew that Junior had confessed to killing Ed even though the prosecutor claimed that Gillis was the triggerman. The judge knew this because he had been previously informed of this fact by the forensic psychologist that he appointed to evaluate Michelle, Junior, and Gillis. The judge also knew from the psychologist that Gillis had admitted helping Junior after the fact, but denied pulling the trigger, pointing the finger instead at the admitted shooter Junior. Despite all of this, the trial judge disallowed the jury from hearing this evidence as a sanction against Michelle’s defense attorneys for not timely sharing the information with the prosecution.

Beyond that, Michelle suffered from a host of conditions brought on by her long history of abuse, including depression, alcohol dependence, Borderline Personality Disorder, and Munchausen’s Syndrome. As the psychiatrist retained by her defense team explained, these conditions rendered Michelle psychologically incapable of leaving her abusive husband. But the jury never heard this because Michelle’s trial counsel bumbled her defense so badly. Thus, prosecutors were able to play the “blame-the-victim” card without any push-back whatsoever.

Finally, and most disturbingly, prosecutors know that their whole theory underlying Michelle’s prosecution is total bunk. They admit that they were wrong about Gillis being the shooter. They know that Junior confessed to the crime on more than one occasion. And they certainly know that the side-show that was Michelle’s trial is constitutionally dubious at best. And yet, their whole attitude is “Let’s just kill Michelle, anyway.”

So while Junior, the self-admitted killer, and Gillis, the guy prosecutors insisted was the killer, both now freely roam the streets having served short prison sentences, Michelle Byrom is headed to the death chamber, gleefully being pushed along by the State of Mississippi and its top law enforcement officers.

 “’John Grisham couldn’t write this story,’ said Warren Yoder, executive director of the Public Policy Center of Mississippi. ‘In any reasonable world, this would be a short story by Flannery O’Connor,’ Yoder continued. ‘Instead, it is happening right now in our Mississippi.’”

As Dan Moshenberg over at Women In and Beyond the Global has appropriately noted, “The details of Michelle Byrom’s life are hard and disturbing, but the substance, and stench, of Mississippi’s burning is far worse.”

Is Justice on the Horizon for the Central Park Five?

According to documentary film-maker Ken Burns, the city of New York will finally settle a $250 Million wrongful conviction lawsuit brought in 2002 by three members of the infamous “Central Park Five” after ten long years of avoidance and delay by the administration of Mayor Michael Bloomberg. During a November 12 discussion on HuffPost Live, Burns told host Josh Zepps that “Bill de Blasio, the mayor-elect, has agreed to settle this case, and though this is justice delayed way too long, and that is justice denied, [they] will not only be exonerated…but they will have justice, they will see some closure, they will be able to be made whole.”

The ugly story of the “Central Park Five” represents one of the darker moments in our recent history. It lays bare for all to see our shameful fears, prejudices, and preconceptions about young men of color and the unbelievably dangerous and tragic consequences that are their direct, yet predicable result.

On the night April 19, 1989, Trisha Melli, a white Phi Beta Kappa economics major from Wellesley College and the daughter of a Westinghouse executive, was brutally beaten and raped while jogging in Manhattan’s Central Park. The attack left Melli with a fractured skull, internal bleeding, and other injuries from which she was not expected to recover. The heinousness and boldness of the crime sparked outrage in New York and across the nation and was seen as emblematic of New York’s escalating crime problem. 

Shortly after the crime was committed, five juveniles from Harlem were arrested and charged with the assault and rape of Melli—Yusef Salaam (15), Korey Wise (16), Kevin Richardson (14), Antron McCray (15), and Raymond Santana (14). Four of the youths were black, one was Latino. Their faces were immediately splattered on the front page of every newspaper in the country. We were told they were part of a violent gang of youths who were roaming the park on the night of the assault engaged in what became known as “wilding.” We were told they were the demons who savagely assaulted and raped Melli on the night of April 19. We were told that justice would be done. And we believed like we are apt to do. Because we desperately wanted to believe.

And so, the “Central Park Five” as they became to be known were promptly charged, tried, convicted by a jury of their peers, and sentenced to long prison terms. And we congratulated ourselves because justice had been done. 

Except justice hadn’t been done. The Central Park Five were innocent. In 2002, a convicted rapist by the name of Matias Reyes confessed to perpetrating the crime. Independent testing of DNA samples taken from the original crime scene confirmed. As a result, on December 19, 2002, upon the recommendation of the Manhattan District Attorney, the convictions against the Central Park Five were overturned and they were freed. By that time, Yusef Salaam had served 5 ½ years in prison; Korey Wise had served 11 ½ years behind bars; Kevin Richardson had spent 5 ½ years in prison; Antron McCray had been incarcerated for 6 years; and Raymond Santana had been in prison for 5 years.

In 2003, Richardson, Santana, and McCray sued the City of New York for malicious prosecution, racial discrimination, and emotional distress. It is this lawsuit, that has been squatting on the court’s docket for over a decade now, that Mayor-elect de Blasio has committed to finally settle according to Burns.

Representatives for the Mayor-elect have not specifically confirmed Burns’ comments, although they have referred all recent inquiries about the matter to the following January statement which is entirely consistent with Burns’ comments: “As a city, we have a moral obligation to right this injustice. It is in our collective interest—the wrongly accused, their families and the taxpayer—to settle this case and not let another year slip by without action.” Time will tell if the Mayor-elect has the courage and the moral compass to follow through on his campaign promises. 

Asked about the prospect of closure that would result from settlement of the case, Yusef Salaam was philosophical. “I always say, ‘Positive history is still being written.’ And this is where we are right now. We’re definitely waiting for this case to be finished. The Central Park Five doesn’t just represent the Central Park Five. It actually represents the greater reality of what’s happening in our community—and how it happens. People always ask us, ‘Can something like this happen again?’ The reality is that it’s happening right now.”

The tale of Central Park Five is the subject of Burns’ 2012 documentary film “The Central Park Five.”

A Good Day for Michael Morton

November 8, 2013 was a good day and a step in the right direction for the criminal justice system in this country. On that day, Ken Anderson, former Williamson County District Attorney and District Court judge, pled no contest to criminal contempt charges for deliberately withholding exculpatory evidence during his 1986 prosecution of Michael Morton for the murder of his wife Christine. As a result of Mr. Anderson’s prosecutorial zeal, Mr. Morton was convicted of a crime he did not commit and spent nearly 25 years behind bars until he was exonerated by DNA evidence in 2011.

The exculpatory evidence withheld by Mr. Anderson came to light during a rare Court of Inquiry that was convened at the request of The Innocence Project after Mr. Morton’s exoneration. The judge presiding over that inquiry found that Mr. Anderson had concealed two critical pieces of evidence that supported Mr. Morton’s innocence, deliberately disobeyed the trial judge’s order to turn over all exculpatory evidence to Mr. Morton’s defense team, and lied about the existence of evidence in his possession that was favorable to Mr. Morton. That withheld evidence consisted of (i) statements by Mr. Morton’s young son (who was present at the time of the murder) that the “monster” that killed his mother was not Mr. Morton, and (ii) statements by neighbors who described seeing a man in a green van parked nearby the Morton home just before the murder.

Based upon these findings, the Court of Inquiry ordered Mr. Anderson arrested. Faced with a potential 10 year prison terms for evidence tampering, he agreed Friday to plead no contest to criminal contempt charges. His punishment: 10 days in Williamson County Jail, a $500 fine, 500 hours of community service, and the loss of his license to practice law. 

Although the punishment seems disproportionately lenient given the egregiousness of Mr. Anderson’s crime, Mr. Morton was pleased that he had achieved his twin objectives: removing Mr. Anderson from the bench and ensuring that he could never practice law again. “It was one of those necessary evils, or distasteful requirements that you have to do in life,” Morton said, calling it “a good day.”

Unfortunately, it was an extremely unusual day as well. Prosecutors are rarely, if ever, held to account for deliberate misdeeds that result in the long-term incarceration of the innocent. In fact, according to Barry Scheck, co-director of The Innocence Project who partnered with attorney John Raley on Mr. Morton’s case, Mr. Anderson’s conviction and disbarment are “historic,” perhaps the first time that a prosecutor has ever been criminally punished for failing to disclose potentially exculpatory evidence. That sad and breath-taking reality is what makes this story all the more remarkable.

The Innocence Project in conjunction with the Texas Criminal Defense Lawyers Association will now conduct an independent review of all cases that Mr. Anderson prosecuted during his tenure as District Attorney. They will also review select files of John Bradley who fought Mr. Morton’s attempts to secure the DNA testing that ultimately proved him innocent. As Mr. Scheck has noted, “The number of prosecutors who deliberately break the rules is small, but history shows they tend to be repeat offenders.” The Williamson County District Attorney has pledged to cooperate with this review.
 

Passing on Adventure

The other day a friend and I got into a debate about the “Adventure Pass.” For those of you who are not in the know, the “Adventure Pass” is a program adopted by several southern California National Forests that requires forest users to purchase a “pass” ($5 per day or $35 annually) for the privilege of parking an automobile in the national forest. Given the geography, development patterns, and lack of viable public transportation options, driving to the affected national forests is the only practical method of getting there for most folks. As a result, the “Adventure Pass” effectively functions as an additional fee imposed for the use of your national forests. The program began as a pilot, but has predictably become a permanent fixture of the national forest landscape, at least in the Los Padres, Angeles, San Bernardino, and Cleveland National Forests.

I am virulently opposed to the “Adventure” Pass for a variety of reasons. One of the things that government should do with our tax dollars is provide and maintain public space without imposing additional “user” fees, whether that space is a national forest or a municipal park. Programs which force, under threat of substantial monetary penalties, those who use public facilities (whether by choice or out of necessity) to pay an additional fee for that use is nothing but a tip of the hat to the selfish ideology, often espoused by those who have already benefitted from one or more public institutions or programs, that “no one but me should gain benefit from my tax dollars.”

Beyond that, the Adventure Pass program, when coupled with the “war on drugs,” has caused unintended (or is that intended?) collateral damage. Whereas at one time forest rangers were trained naturalists who would hike the trails focusing on the flora and fauna of the forest, now they are nothing more than glorified traffic cops and vice officers who drive the roads prowling for parking fees and collars.

My friend, on the other hand, is a big supporter of the Adventure Pass. He views the pass as a magnanimous and unique opportunity to contribute additional dollars to the public fisc so that he can “share” the forest experience with others. Although I think that position silly, it is the catalyst for the additional fee generating schemes that I am proposing here today. This, of course, is not an exclusive list of possible programs that can be modeled after the Adventure Pass program, but it’s a good start and is eminently doable given the current political climate in the country.

• The Love Pass- this is a $35 annual fee that will imposed by each municipality on each tennis player for the use of public tennis courts. The fees collected will be used to pay for the cost of lights, nets, general maintenance, and a Court Officer who will be deputized and will carry both a loaded weapon and pepper spray. The Officer will be tasked with checking players for Love Passes, writing tickets to Love Pass scofflaws, keeping order on the courts, and searching users at whim and without probable cause for contraband. All Court Officers will be recruited from the local Sheriff's Department and will be required to have absolutely no knowledge of, or interest in tennis.



• The Velo Pass- this is a $35 annual fee that will be imposed by every municipality upon each road bike rider for the privilege of riding a bicycle on city maintained streets. The fee will be used to defray the cost of bike lanes that are now paid for principally by motorists. Significant monetary penalties for non-compliance will apply.



• The Metro Pass- this new $35 annual fee above and beyond the basic ticket cost will be charged to all public transportation users to defray the costs of public transportation now being subsidized by non-public transportation user tax dollars. A separate fee will be imposed by each transportation authority, meaning that users will need a separate Metro Pass for buses and commuter rails. There will be no exceptions or discounts for the economically disadvantaged who are supping at the public transportation trough, but a combined bus/rail Metro Pass will be available at the discounted rate of $65.



• The Reading Pass- this is a new $35 annual fees assessed against all public library users. The fees will be used to cover the cost of acquiring knowledge from a taxpayer funded library facility. It will also fund a Reading Enforcement Agent whose primary function will be to check for Reading Passes and to write tickets to those attempting to ride the knowledge coattails of other paying patrons. The fee will be assessed against each library patron, but a family pass will be available at the rate of $30 per family member.



• The Play Pass- this is a $35 annual fee that will be assessed by each municipality and/or county against all public park users for the privilege of stepping foot in the public parks. Note that this fee will be separate and distinct from the annual Love Pass which will assessed separately. It is also separate and distinct from the Softball Pass (a per player fee, not a per team fee), the Soccer Pass (again, per player), the Skate Pass (a combined skateboard and roller-blading pass will be available for $65), and a general Lolligagging Pass that applies to all other park activities. Special kiosks, funded by Play Pass fees, will be constructed at each park entrance and staffed by enforcement agents who will check users for Play Passes before park entrance is granted.



• The Sand and Surf Pass- this is a $35 annual fee that will be charged to all public beach users for the privilege of stepping foot on the public beaches. Note that this fee will be in addition to applicable parking, day use, and camping fees. Armed enforcement agents will strategically occupy existing lifeguard towers so that they can apprehend, with force if necessary, moochers and freeloaders who attempt to enjoy the beach without paying their fair share.



• And finally, the Dog Shit Pass- this is a $35 annual fee (in addition to licensing fees) that will be assessed against dog owners for the privilege of walking a canine on public property. The fee will fund dog parks, fecal clean up, and a Dog Shit Enforcement Agent who will have the authority to club dog owners into submission if they fail to clean up after their pooch. Please note the each municipality will require its own Dog Shit Pass so if you plan on traveling with your dog, your annual contributions to Dog Shit Passes may be significantly higher than just $35.

These are just a few of the new fees, modeled after the very popular and successful Adventure Pass, that I think could be proposed to public officials in the very near future. However, public facilities users should not fret about the potential for having to pay these additional new fees as all money collected will be deposited into the public fisc. Thus, those who pay these fees can rest comfortably in the knowledge that they are both carrying their own substantial weight and sharing our public facilities with other users.