Tex McIver’s clever coattails were now snagged by the slowly grinding wheels of Georgia’s criminal justice system. That relentless system would pull Tex into the cams, levers, chutes, and gears of the procedures of criminal law—investigation, charge, trial, a jury’s verdict, and a judge’s sentence. Questions would be raised early in the investigation about whether Tex was unfairly enjoying the benefits of being wealthy and white. The process would end in a legal judgment on the consequences of Tex’s killing Diane. That judgment would be enforceable by the ultimate power of the state over individuals.
But what exactly is the “criminal justice system”? To say that the criminal justice system is a subset of a larger “legal system” or an embodiment of that monumental abstraction “the law” expands the scope of the question, but does not answer it. What are a legal system’s essential parts? Where do laws, and specifically criminal laws, come from? What are the mechanisms, the procedures, for enforcing the laws? How do all of these processes affect different racial, ethnic, and economic groups within society? Answers to these questions are essential to understanding the relationship between race and justice in America.
Some scholars have described four essential parts of a bona fide legal system (of which the criminal justice system is half, the other half being civil law). These parts are laws that “define the formal rules of regulating society,” legislation by “an agency for changing and making laws,” enforcement in the form of “an agency for enforcing the laws,” and a means for dispute resolution, “settling disputes between individuals” (in criminal cases, one of the individuals is the defendant, the other is the state).[1] There are other definitions, but these four elements capture the distinction between an institutionalized system with more or less predictable rules and processes and the arbitrariness of formless anarchy or capricious dictatorship.[2]
The are other means of social control outside of the criminal justice system. “Individuals in a large-scale society live a portion of their lives in various institutions, each of which may have its own methods of social control.”[3] Examples among the myriad of social controls outside of the state’s criminal justice system include parental “grounding” within the institution of the family, dietary and ritual rules within religious institutions, work rules imposed by employers, dress codes at restaurants, and architectural and landscaping rules of neighborhood associations. Violations of rules like these can have unpleasant consequences—including refusal of service, loss of jobs, and expensive lawsuits.
“Why even have a state criminal justice system at all?” some might ask. Why not just use other means of social control? The alternatives to state systems are vague, and one reply is obvious. “The criminal justice system exists because of crime—people behaving in unlawful and often barbarous ways toward each other,” one standard scholarly text answers. “In response to crime, the state is authorized to seize and confine people, strip them of their property and liberty, and even put them to death.”[4]
But what is not obvious, and remains the constant nub of social turmoil and public policy debate, is how we can ensure that the powerful state responses to crime are fair and impartial—that they dispense equal justice under law to everyone. This problem involves primarily the procedures of criminal law, although it sometimes concerns substance, the definition of crimes that impact different groups differently.
In the mid-1960s, a professor of law at Stanford University thought and wrote about criminal procedure in the context of a series of landmark decisions of the Supreme Court under the leadership of Chief Justice Earl Warren. “The innovative decisions of the Warren Court changed the law, and society,” other scholars have since written.[5] These decisions collectively enhanced civil rights and decreed that these fundamental rights included certain things, such as the right to counsel in criminal cases. After thinking about the impact of the Warren Court’s decisions, Herbert Packer wrote several influential law journal articles and a book in which he discussed the importance and limits of the criminal process, and what he conceived of as two basic models of criminal procedure. He called them the “Due Process Model” and the “Crime Control Model.”[6] Each of Packer’s models rests on different value systems.
“The value system that underlies the Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process,” Packer wrote. “The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom.”[7]
The Crime Control Model, on the one hand, pays most attention to “the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate dispositions of persons convicted of crime. . . . The process must not be cluttered with ceremonious rituals that do not advance the progress of a case.”[8]
The Due Process Model, on the other hand, regards the “combination of stigma and loss of liberty that is embodied in the end result of the criminal process . . . as being the heaviest deprivation that government can inflict on the individual,” Packer argued. “Power is always subject to abuse, sometimes subtle, other times, as in the criminal process, open and ugly. Precisely because of its potency in subjecting the individual to the coercive power of the state, the criminal process must, on this model, be subjected to controls and safeguards that prevent it from operating with maximal efficiency. According to this ideology, maximal efficiency means maximal tyranny.”[9]
In sum, Packer observed, “If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course.”[10] The tension between these two models is very much evident in the explosive events of 2020, in which fundamental questions about how the criminal justice system is supposed to work and how fairly the criminal justice system treats people of color are at the fore.
But which criminal justice system are we talking about monitoring and fixing if need be? “[T]here is no ‘criminal justice system’ in the United States,” legal scholars point out. “Rather, there are many overlapping, competing, and conflicting ‘criminal justice systems’ throughout the country.”[11]
In 1967, President Lyndon Johnson’s Commission on Law Enforcement and Criminal Justice, popularly known as the Katzenbach Commission, put it this way.
The system of criminal justice America uses to deal with those crimes it cannot prevent and those criminals it cannot deter is not a monolithic, or even a consistent, system. It was not designed or built in one piece at one time. . . . Every village, town, county, city, and State has its own criminal justice system, and there is a Federal one as well. All of them operate somewhat alike. No two of them operate precisely alike.[12]
This stubborn fact of federalism and local control alone should give pause to any who believe that the U.S. Congress or the president can effect sweeping changes in the American criminal justice system by law or decree.
Like those of other states, the Georgia criminal justice system is distinct from and independent of the federal system (except for the ideologically variable federal oversight of constitutional protections, which has historically run hot and cold). State and local justice systems process the vast majority of crimes in America, from simple assault to murder. Although the states differ in the details of their definitions of crimes and the procedures they use to enforce their laws, their criminal justice systems are a brood of almost-identical twins.
Textbook definitions of “the law” often project the majestic image of a finely geared, well-tuned, up-to-date, rational, and objective system for dispensing even-handed justice. “No one is above the law” in the sober courts of this magnificent world. In fact, legal systems are mechanically more like hybrid engines sprung from the minds of steampunk geniuses. Subjectivity, privilege, expediency, economics, politics, and informal discretion affect each of the elements, from the creation of its parts (laws and procedure) to their daily operation (enforcement and adjudication).
Some ancient parts embedded within the machinery of the American legal system have been worn smooth over time. Many modern legal concepts and procedures were fashioned eons ago, passed through the forge of English common law, and finally shaped and blended by the peculiarities of America’s history and its evolving culture. “Legal history is a story which cannot be begun at the beginning,” the English legal historian Theodore Plucknett wrote a century ago. “However remote the date at which we start, it will always be necessary to admit that much of the still remoter past that lies behind it will have to be considered as directly bearing on the later history.”[13] The legal systems of Greece, Assyria, Egypt, and Rome, as well as the religious codes of Judaism and Christianity, left lasting marks on the American legal system.
So did the requisites of slavery and the meanness of Jim Crow racism.
Legal systems “do not come from outer space,” observed legal historian Lawrence Friedman.[14] They are the products of specific societies. “Behind the law, and above it, enveloping it, is society.”[15] Laws and how they are enforced are the product of collective decisions by specific societies. They vary over time and place, responsive to cultural changes and regional differences. The antebellum legal system in America accommodated and facilitated slavery and disparate racial treatment, most extensively but not exclusively in the South. The Jim Crow legal system that followed deliberately attacked the exercise of equal rights by people of color throughout America.
These collective decisions about legal systems by societies are not made through egalitarian democracy exercised by a cheerful yeomanry. “Not everybody is part of the collective that makes the decision,” Friedman observed. “When we say ‘society’ we really mean those who call the tunes and pay the piper. It would be worse than naive to imagine that everybody’s opinion counts the same, even in a country that is supposed to be democratic.”[16]
So, whose opinion counts the most? Virtually all societies are organized in a pyramid of class and power. At the narrow tip of the pyramid are the elite, at the wide bottom the least powerful, and in the bulk between the middling classes who hope to rise higher and struggle not to sink lower. “The rich and powerful, the articulate, the well positioned, have many more ‘votes’ on matters of definition [of crimes] than the poor, the weak, the silent.”[17] In the United States, the complexion of the pyramid shades from largely white at the top to darker shades of black and brown at the bottom.[18] The societal power structure keeps the legal system conservative, slow to change, and inherently biased toward defending the comfort of the status quo as defined by the elite.
The same disparities of wealth and power are reflected in enforcement and adjudication procedures virtually every hour of every day somewhere in America. The enforcement levers of the legal system’s machinery are subject to the whims and biases of the humans whose hands move them, from the police officer who decides whether to arrest to the prosecutor who decides whether to press charges. “Enforcement, of course, is always selective, for all sorts of reasons, the system does not, cannot, and will not enforce the norms in any total way,” according to legal historian Friedman. “Unenforcement is as vital a part of the story as enforcement.”[19]
Not only are the individuals who administer the system “only human” and thus subject to human flaws including racist attitudes, but the availability or lack of financial resources also plays a role. A well-funded, well-staffed, well-trained system in a wealthy jurisdiction may have the administrative space to be more deliberate and more comprehensive in its enforcement decisions than a resource-starved system in a poorer area. This will have more or less obvious implications in low-income areas with large populations of color and minority ethnicities.
Police play a unique role in the criminal justice system because “for the most part the prosecutors, the courts, and the correctional officials can deal only with those whom the police arrest.”[20] Whether and whom to arrest is an individual decision. “Officers every day decide to intervene or ignore suspicious circumstances, applying broad legal standards like probable cause or reasonable suspicion, often without prior or subsequent judicial supervision. They may arrest, or choose to treat an infraction in some other way.”[21]
Putting aside the discretion of police, criminal law is “much more politicized” than the civil law that deals with conflicts between individuals, such as contracts and torts. “Criminal law is enforced by politicians (the heads of most local prosecutors’ offices, usually called District Attorneys, are elected officials), and the laws that they enforce are defined by other politicians (both state legislators and members of Congress are elected officials).”[22]
The handling of Tex McIver’s case raised angry questions in Atlanta about these factors of discretion and political influence, and their impacts on race, justice, and disparate treatment. Depending on these gatekeepers’ conclusions about the nature and severity of Tex’s criminal offense, if any, he could walk away with a slap on the wrist, spend the rest of his life locked up in a Georgia prison, or suffer a lesser penalty somewhere between those two extremes.
At the most basic level, the criminal law distinguishes between less serious misdemeanor offenses and more serious felonies. What’s the difference between a misdemeanor and a felony? The details vary only slightly among state criminal codes. A good rule of thumb is that any crime that calls for a punishment of imprisonment for more than a year is a felony. Crimes that call for lesser punishments, a year or less, are classified as misdemeanors (although some states classify crimes punishable with one year’s imprisonment as felonies). One day of imprisonment more or less makes the difference.[23] In Georgia, misdemeanors are crimes punishable for not more than twelve months (i.e., a year or less).[24] Depending on how the police and prosecutors viewed Tex’s killing of Diane, his act of homicide could be treated as a misdemeanor or as the most serious felony in the law.
Homicide is the taking of human life—killing another person. Most legal and moral authorities regard homicide as the most serious act that one human being can commit against another. But not all homicides are alike or equally serious offenses in the eyes of the criminal law. Depending on the killer’s intent and the details of their act, any given homicide might range from the ultimate felony of murder, the “king of crimes,”[25] to an act not regarded as criminal at all, as in the cases of self-defense or legal exercise of state authority (executions and justifiable police shootings).[26] The felony of manslaughter is “an intermediate crime which lies half-way between the more serious crimes of murder, at the one extreme, and, at the other extreme, justifiable or excusable homicide, which is not criminal at all. Thus manslaughter constitutes a sort of catch-all category which includes homicides which are not bad enough to be murder but which are too bad to be no crime whatever.”[27]
The law of homicide, even though today enacted into criminal statutes, was created by common law judges, mostly in fifteenth-century England’s law courts.[28] Given their seriousness, one would think that there would be clear definitions of the range of offenses it covers, from murder to manslaughter. “Yet there may be no frequently punished offense that is so poorly, and so strangely defined.”[29] The law of homicide is complicated by layers of words, laid down in centuries past attempting to define a killer’s state of mind, that still play a major role in legal judgments. The meaning of words like “malice” and “intent” are unavoidably encrusted with the thoughts of ancient jurists.
In Georgia, a person “commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.”[30] Malice aforethought is sometimes called “premeditation.” In sum, the killer intends to kill the victim. Another type of murder is “felony murder,” which is committed when the victim dies because of the actions of a perpetrator committing another felony, such as burglary or robbery. A key feature of felony murder is that all of the criminal participants acting in concert may be held liable for a homicide committed by only one of them. If three men go in to rob a store and one of them shoots and kills a clerk, all three may be held liable for felony murder. At the other end of the scale is involuntary manslaughter, committed when a person “causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.”[31]
There was almost no direct evidence to explain what Tex had done or why he had done it.
No one saw how Tex was holding the gun. Was he pointing it directly at Diane? Or was it dangling from his hands, maybe loosely cradled in his lap? No one saw Tex pull the trigger, an act that could have been either an easy finger flick or a hard pull, depending on whether the hammer had been cocked. Cocking a revolver’s hammer requires a deliberate downward pull with the thumb. A revolver’s cocked hammer results in what is popularly known as a “hair trigger.” It is an act of preparation that indicates that the shooter probably intends to fire the gun. If the hammer were cocked, only about two pounds of finger pressure would have been enough to pull the trigger. If the hammer were not cocked, considerably more pressure would have been required—about twelve pounds.
Tex’s fate would have to be decided by circumstantial evidence—indirect evidence from which everyone in the chain of Tex’s fate, from police to prosecutors to jurors, would have to infer what Tex had done in those fatal seconds, and most importantly why he had done it.
Circumstantial evidence in a criminal trial is like a nest of scorpions lurking under a carpet of leaves in a forest. In the absence of witnesses and clear direct physical evidence, the scorpions of indirect circumstance determine guilt or innocence. When a prosecutor sweeps off the leaves, the scorpions scramble into action. Usually they sting the defendant. But sometimes they sting the prosecutor.
Law professors, lawyers, and judges will explain patiently that there are two basic kinds of evidence—direct and circumstantial.[32] Direct evidence is in and of itself proof of a fact. Circumstantial evidence is proof of one fact from which one must make a logical inference to accept the truth of another fact. Legal experts insist that both types of evidence are equally valid. There is nothing inferior about circumstantial evidence. Both are ways to establish facts from which the jury in a criminal trial can conclude beyond a reasonable doubt that the defendant committed the crime with which he or she is charged. Criminal convictions can be, and regularly are, based almost entirely on circumstantial evidence.
An example that is often used to illustrate this difference between direct and circumstantial evidence is deciding whether it is raining. If you can look out the window and see the rain coming down, that’s direct evidence that it’s raining. If someone you trust comes in and says, “It’s raining,” that testimony is also direct evidence. In either case, you can accept what you see, or what you hear from a credible witness, as conclusive evidence that it is raining.
But suppose you are in an interior room and you can’t see outside. Someone comes into the room directly from outside. Their clothes are wet, and they are folding up a dripping umbrella. That’s circumstantial evidence. They don’t have to say anything. The person is wet, has recently used an umbrella, and has just come in from outside. These are facts from which one can apply logic and reasonably infer the additional fact that it must be raining outside. Even so, some jurors will insist that all this evidence of the weather outside is “just circumstantial.”
Beyond that, and despite what judges instruct and lawyers argue, some jurors stubbornly demand direct evidence of a specific type—laboratory or “forensic” evidence, such as DNA. This demand is popularly known as the “CSI syndrome,” a reference to a television series in which laboratory evidence played a crucial role in criminal trials. But many criminal cases simply don’t need laboratory evidence. “The problem today is that citizen jurors expect to be dazzled when selected and seated for jury duty, waiting to be overwhelmed and over-impressed when the prosecution produces tons of forensic evidence and related scientific whiz-bang devices,” explained retired Federal Bureau of Investigation expert Clint Van Zandt. “When these ‘toys for boys’ are not introduced, it’s like, well, ‘Where’s the beef?’ Enter the CSI Syndrome.”[33] This is one reason why the scorpions sometimes sting the prosecutor who stirred them up.
Throughout American legal history, the middle step of inference between direct evidence and factual conclusion has also been a crude implement of race-based discrimination. Police, prosecutors, and jurors have regularly made different inferences about the conclusions to be drawn from the circumstance of a dead body and a gun in a suspect’s hand, depending upon the races of the victim and the alleged offender.
During the Jim Crow era, these cases were more blatant, or perhaps just less hidden, than they are today. Because of the unwritten law of racial bias, for example, antilynching laws “were nothing more than words on paper.”[34] In the rare cases in which members of a lynch mob were indicted, “they were rarely convicted . . . conviction of a lyncher—any conviction of any lyncher—occurred in less than 1 percent of the lynchings in the United States after 1900.”[35] When a grand jury was impaneled in Georgia’s Cobb County to consider the notorious case of the lynching of a white Jew, Leo Frank, seven members of the lynch mob were on the jury. “There was also immunity for men who, for whatever reason, were accused of committing any sort of crime against an African-American. White juries simply acquitted these men.”[36]
The failed 1995 California prosecution of O.J. Simpson on charges of murdering his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman, is often cited as a high-profile case in which the scorpions stung the prosecutors. Another is the unsuccessful 2011 Florida prosecution of Casey Marie Anthony for the alleged murder of her two-year-old daughter, Caylee. Although other factors may also have strongly influenced the successful defenses in those cases, both prosecutions were based almost entirely on circumstantial evidence.[37]
Georgia was home to a famous cases of repeatedly stung prosecutors during the 1980s—the four trials and three successful appeals from conviction of James Arthur Williams, a fifty-year-old man accused of murdering in his Savannah home his twenty-one-year-old former male lover, Danny Lewis Hansford. Shortly after Williams was finally acquitted once and for all, he dropped dead in his home. Author John Berendt’s best-selling novel Midnight in the Garden of Good and Evil[38] and the blockbuster movie of the same name starring Kevin Spacey were loosely based on Williams’s story. (The tendrils of criminal justice in Georgia are as entwined as the suffocating sprawl of the infamous kudzu vine. Don Samuel—a heavyweight Atlanta criminal defense lawyer who would help slug it out for Tex McIver—represented Williams during one of his four trials. Samuel was accused of using high-level political influence to wire one of Williams’ appeals before the Georgia Supreme Court. The accusation never resulted in any decision or sanctions.)
The scorpion’s sting is not always fatal. It might even be thought to have been a good thing for Dep Kirkland, the first of several prosecutors to take the Williams murder case to trial. Kirkland abandoned the practice of law, left Georgia for Hollywood, and became a successful writer and actor. His book Lawyer Games—After Midnight in the Garden of Good and Evil[39] is a skeptically wry treatise on the factual underbelly of the Williams case and the games that lawyers play. It is a not very delicate rebuttal to Berendt’s cosmetic treatment of the story.
At about the same time that suspicious prosecutors in the Fulton County district attorney’s office were raking the leaves around the shooting of Diane McIver, a sensational trial was making headlines in Georgia and across the world. It involved another death in an SUV, also claimed to be accidental, but eventually treated as felony murder. The case was entirely circumstantial. The media scramble, the public outrage, the prosecution, trial, and outcome would be an instructive template for the thousand stings that were coming for Tex McIver.
Justin Ross Harris was arrested and charged with murder after he left his twenty-two-month-old toddler son, Cooper Harris, all day in a car seat in a closed SUV on June 18, 2014. It was a hot and sunny day. Cooper died before noon, suffering from the intense heat that built up in the SUV—clinically called “pediatric vehicular heatstroke.” Cooper would have suffered through several hellish stages—nausea, headache, dehydration, diarrhea, and convulsions. The boy’s body had marks where he had scratched himself, crying, struggling, trying to get out of the car seat.
Harris (who went by the name “Ross”) insisted that he had simply forgotten that Cooper was in the car. It was a story that was not incredible on its face. On average, thirty-seven children die in hot cars in the United States every year. A study of 742 such deaths over almost twenty years found that 54 percent of the young victims were inadvertently forgotten by their parents or other caregivers, just as Ross Harris claimed he had done. The next largest category was children who got into cars on their own, accounting for 27 percent of the deaths. And by no means were all of the 18 percent who were intentionally left in a car and died deliberately murdered—some adults who left unattended children in a vehicle were using their car as a surrogate babysitter. They mistakenly thought that cracking the windows would be enough, or did not grasp how quickly a vehicle can heat up and kill a child even in the course of the parents’ brief errands.
There was little direct evidence to counter Ross Harris’ claim that he simply forgot to drop his son off at a daycare center. But prosecutors found stunning circumstantial evidence that they thought pointed to a deliberate plan to get rid of Cooper. It turned out that Justin Ross Harris was a serial and constant adulterer. “I cheat a lot,” he texted one of his female liaisons. “I know it’s not right, but I’m addicted to sex.” Harris was constantly at it, sexting hookups through an online app, even from inside his church on Sundays. This was not mere fantasy play. Ross met and had illicit sex with many women. Some of them were underage, a fact that added the charge of sexual exploitation of a minor.
On June 18, the day that Cooper died, Harris exchanged texts with at least six women. In one of them, sent ten minutes before he left Cooper locked in the car, he wrote, “I love my son and all, but we both need escapes.”
Shortly after lunch that day, Ross exchanged explicit texts with one of his paramours.
“Can I see your tits?” he asked her. She obliged with a photo, to which Ross replied, “Mmmmm.”
“I asked if he wanted to play with them,” the woman testified. “He said, ‘Fuck yes, I do.’”
To prosecutors, this addictive conduct provided the motive for intentionally murdering his own son. He simply wanted to get Cooper out of the way. And he thought he could get away with the murder by playing the guilt-ravaged father who made a horrible mistake.
The trial was held in the coastal Georgia town of Brunswick, a city we’ll visit again later in this book. In November 2016, a jury found Ross Harris guilty of malice murder. He was sentenced to life in prison without any possibility of parole. As of this writing, he is seeking a new trial.
The circumstantial evidence that prosecutors stirred up in Tex’s case was less lurid. It focused on the details of the McIvers’ relative financial positions—Diane’s wealth was going up, Tex’s was sliding down, particularly because he had lost partnership status at his law firm. This imbalance would allow prosecutors to argue, and jurors to infer, that Tex had a classic motive for killing Diane—greed.
Circumstances other than the circumstantial evidence of the courtroom also affect the outcomes of all sorts of encounters with the criminal justice system—the scorpions of race and class, for example. The circumstance of being poor or a person of color is often treated as different from the circumstance of being wealthy and white, whether in a routine traffic stop or the final vote in a jury room. Color and ethnicity are in themselves circumstantial evidence in America. Driving while black, jogging while black, even working as a deliveryman while black or banking while black have had serious, sometimes fatal, outcomes in incidents that likely would never have happened were the “person of interest” white.
From the moment he arrived at the hospital with a mortally wounded Diane, Tex began a Texas two-step dance to avoid criminal liability for his actions. Even as Diane was bleeding to death in a surgical suite only yards away, Tex was huddling in a hallway, arms over shoulders with a hastily assembled team that included his lawyer and public relations adviser. He also attempted to persuade Dani Jo Carter to change her story about what happened, specifically to erase the fact that she was driving the SUV.
“I don’t trust these guys, Dani Jo,” he said, referring to the police. “I hate to see you get wrapped up in this. I’ve seen how these things can go down. You just need to tell them that you’re down here as a friend of the family.”[40]
Dani Jo refused to go along with Tex’s curious fiction.
“Tex, I just drove you into the emergency room,” she replied.
“He looked at me and said, ‘Well, they don’t know that,’” Carter later testified. “That took my breath away. I said, ‘I can’t lie.’”[41]
“What kind of idiot would I look like?” she asked in an interview with the author, noting that the lie that she had not been in the SUV and driving would have been easily and quickly exposed.
Only a month later would it be clear how, more than two decades before that fatal night in 2016, Tex had indeed acquired firsthand experience in seeing “how these things can go down.”
The core question when a bullet fired by one person strikes another person revolves around the shooter’s intention—if indeed they had any intention at all—when the trigger was pulled. How believable could it be that a person could unintentionally—unconsciously or reflexively—pull the trigger of a given handgun and fire a bullet into someone’s back? In Tex’s case, the question boiled down to only two possibilities: either a hapless Tex had blundered into a tragic act of negligence and accidentally shot his wife, or a cynically calculating Tex had deliberately murdered her and tried to make it look like an accident. Opinion divided almost immediately among casual and informed observers alike. Most of Diane’s friends and colleagues at the Corey Companies were suspicious of Tex and skeptical of his meandering narrative.
Tex’s camp fell back on the unintentional discharge, or “the gun just went off” defense. Tex insisted that he had no recollection of pulling the trigger. He maintained that he was asleep. He must have been startled and reflexively fired the stubby revolver, either as he woke up or as he drowsed in a semi-conscious state. “The gun just went off” defense is not uncommon when one person shoots and kills another person and there is no clear evidence as to motive and intent. It has variable success.
The defense worked for Jose Ines Garcia Zarate, a Mexican national in the United Sates illegally. Garcia Zarate was charged with murder in the shooting of Kathryn Steinle, a San Francisco Bay area resident. Steinle was shot in the back in July 2015 as she walked with her father on San Francisco’s Pier 14. Garcia Zarate’s lawyers successfully argued that he had found the stolen gun and that it accidentally fired while he was handling it. In short, the gun had “just gone off.” The undocumented immigrant was acquitted of murder and manslaughter charges after trial in November 2017.[42] The verdict infuriated President Trump, who seized on the case from its beginning as an example of the problem of “illegal immigration” from Mexico. On the evening the jury’s verdict was returned, Trump tweeted that it was “disgraceful.” The next day he renewed his call for a wall to be built along the border with Mexico.[43] Garcia Zarate was eventually deported.
On the other hand, the same defense did not work for rookie New York City Police Department cop Peter Liang, charged with homicide after a bullet he fired in a darkened stairwell struck and killed an innocent black resident. Liang insisted in his testimony that his gun “just went off.” But the jury found him guilty of manslaughter. Liang was sentenced to probation and community service and served no jail time.[44]
The prosecution of Peter Liang sparked an eruption among Asian Americans. Activists pointed out that “Liang’s conviction [was] a glaring anomaly among cops who have killed unarmed civilians, the vast majority of whom don’t face criminal charges.”[45] Thousands demonstrated on Liang’s behalf. They claimed that Liang was “a minority scapegoat . . . sacrificed to a nation incensed by officers killing black men.” The New York Daily News had reported before the Liang episode that in fifteen years, and in at least 179 New York City Police Department officer-involved deaths, only three officers had ever been indicted.[46]
Would “the gun just went off” defense work for Tex McIver? It might have had Tex not dragged the Black Lives Matter movement into the equation. The instant he did, everything changed. The first step of Tex’s clever dance planted his feet in the middle of legal and cultural scorpion nests.
Tex woke the scorpions himself.
“The mention of Black Lives Matter catapulted what seemed to be a tragic mistake into a worldwide media feeding frenzy,” observed Atlanta Journal-Constitution columnist Bill Torpy. “The backlash came hard and loud—here was a racially insensitive and well-connected white lawyer blaming his wife’s killing on a fear of black people, and he was being treated with kid gloves by investigators.”[47]
In assessing Tex’s claim that he felt in peril, it must be noted that there had indeed been an apparent spike in carjackings in and around Atlanta over the preceding year.[48] (The increase is “apparent” because carjackings—the armed seizure of a motor vehicle—are not reported separately in vehicle theft data gathered by Georgia and published annually in the Federal Bureau of Investigation’s national crime report. The evidence is only anecdotal.) In the year before Diane’s fatal shooting, the Atlanta news media reported a number of violent carjacking incidents.[49] It is possible that Tex was aware of these carjackings.
Two carjackings were reported in Buckhead, the McIvers’ wealthy neighborhood. In August 2015 a man armed with a box cutter forced a woman out of her SUV in the parking lot of a Whole Foods store in Buckhead.[50] An even more troubling incident occurred in June 2016 in the parking lot of the OK Cafe, a popular Southern-style restaurant noted for its upscale clientele. A woman was about to strap her one-year-old into a car seat when two men, one armed with a gun, ordered her out and stole her new 2016 Mercedes Benz.[51]
Even if the carjackings were on Tex’s mind, the question is whether it was reasonable for him to pull out a gun. Most of the reported carjackings happened when the stolen vehicle was stopped and the driver had gotten out, at gas stations or parking lots. And another scorpion reflecting on Tex’s behavior was lurking in the leaves—it would surface with the stunning revelation that this was not Tex’s first armed rodeo. He had been indicted on five felony counts in another shooting incident in 1990. That inconvenient incident had been settled, hushed up, and sent to the limbo of dusty case files until the media broke the story scarcely one month after Diane’s death.
Tex’s alleged fear of running across a midnight Black Lives Matter demonstration was of an entirely different order.
“This was downtown Atlanta, near Georgia State University—not crack-infested streets near the projects circa 1989,” wrote Bill Torpy. “But it’s hard to overcome a mindset in some quarters: Atlanta is dangerous! Grab your gun and get ready to defend yourself!”[52]
Whether Tex actually said that he took out his gun because he feared Black Lives Matter demonstrators hardly mattered. The racially charged excuse was out there. Its destructive force was as invisible as nuclear radiation. Buildings did not topple. Atlanta did not grind to a halt. Aside from a few newspaper articles and media emissions, the legal business of life and death went on without apparent change. But cultural and legal seismographs in Atlanta and America at large registered the tremors radiating from an expression of fear and loathing that was a nearly perfect encapsulation of the American dynamic of race and justice.
The original investigation of Diane McIver’s violent death was conducted at a leisurely, and some thought biased, pace by the Atlanta Police Department. In an unusual demonstration of a prosecutor’s lack of confidence in the police, the Fulton County district attorney’s office started its own independent investigation. It took over the case several months later, an example of another reality of America’s many criminal justice systems. “Even within any particular ‘system,’ various components may be more in tension with each other than working smoothly toward uniform goals.”[53]
During Tex’s later criminal trial, Clint Rucker, the county’s lead prosecutor, flayed the police department’s prime investigator, Detective Darrin Smith. Rucker grilled Smith with a day of scathing questions about delay and missed opportunities in the police investigation. For example, he asked, why had Smith not interviewed Tex until three days after the shooting, even though Tex was still at the hospital after the driver, Dani Jo Carter, had been interviewed on the first night? Why had Tex not been asked in his interview whether the revolver’s hammer was cocked? Why had the detective suggested to Dani Jo that “accidents happen,” implying that he had already reached a benign conclusion? Why had the detective not more closely examined the relative financial conditions of Diane and Tex McIver? The police interview of Tex itself, shown to jurors at the trial, appeared perfunctory. After first talking alone to Tex’s two lawyers, the detective then asked Tex only general questions. The implication Prosecutor Rucker left was that the police department had made up its mind early. It had merely shambled through a sloppy, pro forma investigation.[54]
For whatever reasons, Tex was not charged by police until three months after the shooting. The police treated Diane’s death as the result of an avoidable accident, charging Tex only with reckless conduct and involuntary manslaughter.[55] The cops bought Tex’s theory that the gun had just gone off. “After an extensive investigation . . . I determined that Claud McIver was holding the gun in a careless and reckless manner, that if [discharged] would cause significant injury or death if anyone was directly in front of said gun,” wrote Detective Smith.[56]
The district attorney had another view of where Diane’s death might fall on the scale of homicide. A grand jury was impaneled to consider more serious charges against Tex.
Meanwhile, Atlanta’s black citizenry were watching, and they didn’t like what they saw. Viewed through the prism of race, it looked as if a prominent, affluent, and politically influential white lawyer was being handled with deference and benefiting from assumptions based on his race and class. Activists argued that had Diane and Tex been black, the case would have been handled more aggressively with very different assumptions.
One of the activists was Joe Beasley, well known in the Atlanta civil rights community. Among other things, Beasley served as the Southern Regional Director of the National Rainbow/PUSH Coalition, founded by the Rev. Jesse Jackson Sr., and as the president of African Ascension, an organization he formed to develop economic and political ties throughout Africa and the African Diaspora. He was the Georgia Deputy Director for Jesse Jackson’s 1984 and 1988 presidential campaigns, and he worked on redistricting Georgia’s congressional boundaries to increase African American representation in the U.S. Congress.[57]
“I just think we’re seeing a double standard of justice,” Beasley said in October 2016, one month after the shooting. “I’m worried [Tex] is getting special treatment.”[58]
Others focused directly on Tex’s Black Lives Matter excuse, describing it as a “blame a black man” defense.
“If I as a black man had given an explanation like that, I would be arrested and there would be calls for a murder indictment by the DA,” said Derrick Boazman, an outspoken radio talk show host, former Atlanta City Council member, and businessman.[59]
The impression that Tex McIver was enjoying the special treatment accorded an influential white man was underscored by the stunning revelation in mid-October 2016 that in 1990 he had fired several shots at a moving car occupied by three white teenagers. This was the event when Tex got his firsthand experience in how shootings “go down” with the police. He was indicted on five felony counts. Some twenty-five years later it was a fair question whether a black man who shot at a moving car full of teenagers of any race would have emerged with his arrest, indictment, and court records buried from public view, and his life and career untouched.[60] The story of that shooting also provides insight into Tex’s penchant for reckless gun slinging, a factor probably not known to the American Bar Association when it appointed Tex to its Standing Committee on Gun Violence.
On February 27, 1990, Tex and his first wife lived at 2946 Cravey Trail, a cul-de-sac in suburban northeast Atlanta. Late that evening, three teenagers were sitting in a red Ford Mustang parked near the end of the cul-de-sac, about three hundred feet from the McIver residence. The teens were toasting a friend going off to Marine Corps boot camp, drinking beer, and, among other things, talking about cars. There is no evidence in the record that they were boisterous or otherwise disturbing the neighborhood. One of the teens knew McIver’s son and testified at a hearing that Tex had once told him that he had no problem with the teens coming to that location, as long as they did not leave empty beer cans.[61] If that were true, something about that night flipped Tex’s volatile switch.
Some time around 11:00 p.m. Tex arrived home, parked in the driveway, and went inside. A few minutes later he came back out. He unleashed a large dog which ran barking toward the car. The driver opened his door and barked back, apparently cowing the dog. Tex then fired several shots into the air with a handgun. Alarmed, the driver backed the Mustang away. Tex then stepped into the street and pointed his handgun at the car. He apparently asked no questions and spoke no warning. The teenagers then decided that they had no choice but to leave. That would require them to exit the cul-de-sac by driving past Tex. As the moving car approached, Tex jumped out of the way, then fired two shots into the car as it passed him.
The driver immediately reported the incident to the police. The responding officer found several expended handgun shells in the roadway. Tex told the investigating officer that the presence of the parked Mustang scared his wife, and that he was concerned about unspecified burglary and vandalism in the area. He claimed that he had chased the car on foot but repeatedly and adamantly denied that he had fired a gun. Tex’s actions were in the rough Southern tradition of enforcing criminal laws by private persons, the pinnacle of which is the so-called citizen’s arrest. Allowed in Georgia law since 1863, rooted in control over slaves in the middle of the Civil War, citizen’s arrests have been at the core of several fatal white-on-black incidents in modern Georgia.
Tex’s story did not wash, belied by the direct evidence of the three teenagers’ statements and the physical evidence of the expended shells in the road and the bullet holes in the Mustang. On March 27, Tex was arrested on a charge of criminal assault, booked, and released. Three weeks later, on May 18, a grand jury returned an indictment in the case of The State vs. Claud Lee McIver, III, charging him with five felonies—three counts of aggravated assault and one count each of damage to property in the first degree and possession of a firearm during the commission of a crime.
The case never went to trial. At least one of the teens’ families was friendly with the McIvers. Behind-the-scene negotiations went on. Accommodations were made. On November 28, 1990, the district attorney agreed not to prosecute the case, informing the court that “the victims do not want to prosecute” and “have decided to settle the matter through civil litigation.”
The decision to drop the case was within the bounds of prosecutorial discretion set out in standards published both by the American Bar Association and the National District Attorneys Association.[62] In deciding whether to press charges, prosecutors may consider (although they are not bound by) the wishes of the victim and the availability of suitable civil remedies. Tex paid twenty-nine hundred dollars for the repair of damage to the car. The court consigned his closed case to the “dead-docket,” a legal graveyard where the story of Tex’s felonious gun slinging was buried from public view. As far as Tex’s career went, it was as if the incident never happened. It is a fair question to ask whether a black man who had fired at a carload of teenagers of any race would have enjoyed the same degree of solicitous discretion by a prosecutor.
Aside from the cozy disposal of a multiple felony indictment that Tex enjoyed, the episode illustrates aspects of the white South’s singular culture of honor—an unwritten code for male conduct that was central to the antebellum South and survives in many quarters today.
A variety of explanations have been offered to account for the Southern culture of honor and its link to historically high levels of violence in the South. Psychology professors Richard E. Nisbett and Dov Cohen argue that “the Southern preference for violence stems from the fact that much of the South was a lawless, frontier region settled by people whose economy was originally based on herding.”[63] The authors further explain, “Herdsmen constantly face the possibility of loss of their entire wealth—through loss of their herds. Thus a stance of aggressiveness and willingness to kill or commit mayhem is useful in announcing their determination to protect their animals at all costs.”[64]
Others find the source of Southern honor in codes of ethical conduct handed down through many societies from ancient times. “Southern whites believed . . . that they conducted their lives by the highest ethical standards,” Bertram Wyatt-Brown wrote in his book Southern Honor. “Above all else, white Southerners adhered to a moral code that may be summarized as the rule of honor.”[65] That code made its peculiarly defined “honor” a possession of white men and white men alone. Questioning the morality of a code that perpetuated racial and class distinctions, Wyatt-Brown noted that “white man’s honor and black man’s slavery became in the public mind of the South practically indistinguishable.”[66] Without the honor code and its elevation of white male privilege, he argues, “slavery would scarcely have lasted a moment.”[67]
One aspect of the code is the expectation that an honorable man handles threats on his own, violently if he thinks it necessary, rather than calling on state authority. “To go to the law for help amounts to a public confession of weakness in the face of an admitted wrong.”[68] Tex could have called on police to handle the matter from inside his home. Instead, he chose to go outside and confront the teenagers himself, armed with a gun. It was as if Tex were swaggering around the Old South, where for white men it was “a matter of personal reputation to prove oneself a master of events to one’s family and household, as well as to the world at large.”[69]
A corollary point of Southern honor was the requirement that an honorable white man protect and personally defend the female members of his family against any threat to their reputation or safety. “To attack his wife, mother, or sister was to assault the man himself,” according to Wyatt-Brown. “Outsider violence against family dependents, particularly females, was a breach not to be ignored without risk of ignominy. An impotence to deal with such wrongs carried all the weight of shame that archaic society could muster.”[70]
As Tex’s gun-slinging actions in both 1990 and 2016 illustrate, aspects of the honor code are still influential to some in twenty-first-century Southern culture. “There is no longer any economic reason for southern males to show their physical toughness, yet they believe they will suffer loss if they do not,” Nisbett and Cohen wrote. “For individuals, it may be socially beneficial to continue with culture-of-honor norms.”[71] After Tex shot Diane, Atlanta media consultant Grayson Daughters offered a withering commentary on this vestigial cultural worldview and its influence on Tex. Her commentary touched on the theme of white privilege but hammered the outmoded demands of white Southern honor.
“Here’s this bumbling old geezer who sees a black person and has to get his gun out to protect the ladies,” said Daughters. “He can’t handle the fact that he’s lost his [law] partnership, that his wife makes more than him so he gets into this horrible mess and thinks he can spin this thing, he can manage this thing. It’s his last gasp to exert control while they still have it. He thinks he can run this game but learns it’s not his game anymore.”[72]
The old “game” was still being “run” in some quarters. Three years to the day after Diane’s shooting, Wednesday, September 25, 2019, Joe Beasley suffered precisely the kind of treatment at the hands of the police that he and other activists argued that Tex would have gotten in either shooting incident had he been a black man. On that day officers of the Atlanta Police Department were serving a narcotics warrant on a street down which Beasley was coincidentally driving at the same time. A police officer stopped Beasley. The officer drew his gun for no apparent reason and directed eighty-two-year-old Beasley to turn his car around. The incident crackled with a current of profiling. The police department issued an immediate apology. “The officer drew his service weapon while directing Mr. Beasley to turn around,” police spokesman Carlos Campos said. “The drawing of the weapon is not consistent with APD’s training and we will be addressing that internally, along with expressing our apologies to Mr. Beasley for the stress that this undoubtedly caused him.”[73]
One is left to wonder whether the police department would have been as quick to apologize had Beasley been just another black man driving while black at the wrong time and the wrong place.
Was Tex’s homicide case really being handled differently and preferentially? As in many matters in the administration of justice, the answer lies in the question, compared to what?
If Tex’s case is compared to two notorious accidental shooting incidents in Georgia that happened at about the same time, and in which senior law enforcement officials were the potential defendants, his treatment appears to be business as usual. But a different picture emerges when Tex’s case is compared to the stream of instances—in Georgia and throughout America—in which ordinary black people bumped up against the criminal justice system. Some were suspected of committing crimes. Others were like Joe Beasley, coincidentally and innocently at the dangerous intersection of law and racial perception.
First take the case of the chief of police of Peachtree City, William McCollom.
Peachtree City lies about thirty miles southwest of downtown Atlanta. It is noted for a web of paths that enable residents to get almost anywhere in town riding in a golf cart. The police department conducts some of its patrols in golf carts as well.
In the early morning of New Year’s Day, January 1, 2015, McCollom, who is white, shot his former wife (also white, and with whom he had resumed relations) in the back while both were in bed. Margaret McCollom was sleeping when she was shot. The chief may or may not have been sleeping—his story changed over time. In his call to 911 for help, Chief McCollom said that as he was putting his pistol on the night table beside the bed, the gun somehow just went off. He later settled on a different story, remarkably similar to the account that Tex would give of his shooting Diane some months later. In his later version, William McCollom was holding the Glock 17 9mm pistol in his hand as he slept. He claimed that he was jarred awake by the sound of the gun firing—precisely what Tex said happened when he shot Diane. Margaret McCollom survived, but she was paralyzed for life.
The question, of course, was why in the world would the chief, or any sane person for that matter, go to bed and sleep with a loaded pistol in his hand? McCollom explained that after having a few drinks, he took an over-the-counter sleep aid, went to bed, and fell asleep. The sound of barking dogs woke him. He got out of bed, took his pistol from a holster on a dresser, and checked around the house. He then returned to bed and fell asleep, with Margaret and the gun in hand between the sheets with him.
The shooting proved to be little more than an embarrassing inconvenience for Chief McCollom over the next several months. The Georgia Bureau of Investigation was called in to handle the case. McCollom was neither arrested nor booked with a mug shot. The city manager placed him on paid administrative leave. Opinion was divided about whether the chief was getting special treatment.
Several legal experts interviewed by the Atlanta Journal-Constitution newspaper agreed that McCollom’s journey through the legal system was uncommon.
“Somebody else would probably be arrested, put in jail,” said one of them, Michael Mears, an associate professor at Atlanta’s John Marshall Law School. “They would have to be bailed out and get a lawyer up front. He probably would have lost his job. He would have gotten a mug shot and it would be on TV and in the press.”[74]
Mears suggested that McCollom was being given the “gift of time.” As time passed, emotions would be quelled and the case would be seen as less serious.
But J. Tom Morgan (a former DeKalb County district attorney who would later comment skeptically on Diane’s shooting) argued that McCollom’s treatment was reasonable, given his position. “There’s not been a travesty of justice,” Morgan said. “Everyone is just being cautious going after a public official.”[75]
The discrepancy in Chief McCollom’s story—was he putting the gun on the night table or was it between the sheets, sleeping with him and Margaret?—evaporated. The final version was that he was sleeping with gun in hand. McCollom resigned in March 2015. In August he pleaded guilty to a misdemeanor charge of reckless conduct. He was sentenced to twelve months of unsupervised probation and ordered to pay a one thousand dollar fine.[76]
All in all, not a bad outcome for shooting one’s mate in the back.
Meanwhile, another senior Georgia law enforcement officer was embroiled in another remarkable accidental shooting. On May 3, 2015, Clayton County Sheriff Victor Hill shot a female friend, Gwenevere McCord, in the stomach. According to Sheriff Hill’s account, he and McCord were practicing “police tactics” in a vacant model home in neighboring Gwinnett County, where McCord was working as a real estate broker, when the “tragic accident” happened.
Hill was the first black sheriff elected to office in Clayton County—the site of Margaret Mitchell’s fictional plantation, Tara, and home to a museum memorializing her book, Gone With the Wind, and the plantation life. He has a reputation for being tough on crime and an enthusiast of tactical training and the forceful display of police power.
“The legal, hypothetical question is: Is it a reasonable exercise to run police tactics in an open model home on a Sunday afternoon?” Gwinnett County District Attorney Danny Porter told the Los Angeles Times newspaper. “There are things that make me question the reasonableness of practicing police tactics in a business open to the public.”[77]
Hill was in no hurry to answer that question or to provide details about the shooting. When Gwinnett County detectives arrived at the model home, they found that several members of Hill’s Clayton County command staff had beaten them to the scene. It was a verbal standoff. Neither Sheriff Hill nor his staff were willing to answer the detectives’ questions. Three days after the shooting, Hill turned himself in but still declined to talk to investigators. He was released on bond and continued to serve as sheriff. McCord recovered from her wounds.
Sheriff Hill’s case was closed in August 2016 after he took a negotiated “no contest” plea to a misdemeanor charge of reckless conduct. Under the terms of the plea deal and Georgia’s First Offender Act, Hill’s criminal record from the incident was erased. “It’s like it never happened,” Hill’s attorney said.[78]
If the procedure followed in these two cases—one white, one black defendant—is taken to be the standard, Tex’s case was not unusual. In both instances, investigators took their time and in Hill’s case faced a wall of silence. In both cases, the shooter was charged with reckless conduct, a misdemeanor, the same as one of the two offenses with which the police charged Tex. Because both victims survived, neither of the two senior law enforcement officers were charged with the felony of involuntary manslaughter, as was Tex in his first round with the police. (Police officials suggested that Hill likely would have been so charged had Gwenevere McCord died.)
If, however, one broadens the scope and looks at a myriad of instances in which blacks interacting with law enforcement suffered frightening treatment and death, the argument raised by Atlanta’s black activists is persuasive. Whether statistical or anecdotal in analysis, scholarly or legalistic in form, evidence abounds that when black persons cross the path of the justice system in the United States, they are quite likely to be treated far less cordially than was Tex McIver.
Georgia is an instructive historical exemplar. But the criminal justice system’s lens of racial perception—seeing black persons and especially black men as dangerous—is not restricted to any state or region of the United States. It is universal. On January 21, 2020, for example, attorneys for a young college student filed a lawsuit against several police officers in northern Illinois. The first searing paragraph graphically sums up the systemic problem at the intersection of race, justice, and policing in America:
Plaintiff Jaylan Butler has always known that he could be targeted by police officers because he is Black. Mr. Butler’s father taught him at a young age how to maximize his chances of surviving an encounter with law enforcement—stop instantly, put your hands up, drop anything you are holding, and drop to your knees. Mr. Butler hoped he would never have to use his father’s advice. His hope was shattered on February 24, 2019 when, within minutes, Mr. Butler went from riding on a bus with his college swim team returning from a conference championship swim meet, to being forcefully held on the ground by police officers with a handgun pressed into his forehead while a police officer threatened to “blow [his] fucking head off” if he moved. Even once the police officers realized that this was a case of mistaken identity and that Mr. Butler had committed no crime, they continued with his detention and arrest.[79]
Jaylan Butler was nineteen years old on the cold winter’s night of February 24, 2019.[80] He and his fellow teammates on the Eastern Illinois University swim team were on a bus, returning to Charleston, Illinois, from a regional swim competition in South Dakota. When the bus pulled into a rest stop along Interstate 80 at about 8:00 p.m. for a break, Jaylan and his teammates got out and stretched their legs. A coach suggested that Butler take a photo of a nearby road sign that warned “Buckle Up. It’s the Law.” The young athlete took a smiling selfie photo and headed back to the bus. Before he could get there, he was suddenly swarmed by at least six law enforcement officers from several jurisdictions arriving in a kaleidoscope of flashing lights. Officers jumped out of their vehicles with guns drawn.
The officers, the bus driver said, “were in a search-and-destroy mode.”[81]
“When Mr. Butler saw the law enforcement vehicles pull up, he was surprised and confused, but he knew what to do. He instantly stopped, put his hands up, dropped the cell phone that was in his hand, and dropped to his knees.”[82]
Jaylan’s instant compliance did him little good. The police forced Butler to lie face down on the snowy ground. One shoved his knee into the young athlete’s back. Another pressed his knee against Jaylan’s neck—a precursor of another incident that would convulse America and the world. A third put his pistol against the youth’s forehead and said, “If you keep moving, I’m going to blow your fucking head off.”[83]
It soon became apparent that the police had the wrong man. They were looking for a suspect in a shooting incident whose only physical similarity to Butler was the fact that he was black. The man they were after was over six feet tall and weighed 230 pounds. Butler was five feet, ten inches tall and weighed 160 pounds. Moreover, the bus driver and Jaylan’s coaches quickly explained to the police who the young man was and why they were there. Despite all of this, the officers forced the handcuffed Butler into the back of a squad car, where he was held for a long and entirely unexplained time.
Eventually, Jaylan Butler was allowed to get his school ID from the bus and rejoin his teammates. But the officers refused to identify themselves and failed to file paperwork required under Illinois law, intended to collect data to study racial bias in such incidents. When the American Civil Liberties Union filed its lawsuit on behalf of Butler, the law enforcement community shifted into a familiar tactic—smearing the victim, raising allegations of what might be called “contributory badness.” In the face of multiple contrary witness stories, the officers and their lawyers claimed that the young swimmer had resisted their requests and become unruly.
Much worse was to come in the year following. (Similar events cascaded even as this book was being written.) Among the most explosive were the killings of two black men that were recorded on video—Ahmaud Arbery in Georgia and George Floyd in Minneapolis. These and other videos of other black and brown men being killed were widely viewed in social and news media. They set off months of intense public protest, vows from politicians to reform the system, and continuing conflict with the long-established social and political norms of white America. The ultimate outcome is yet to be seen, but we will likely see decades of reshaping race and justice in America.
Matthew Lippman, Law and Society, second edition (Thousand Oaks, CA: Sage Publications, 2018), 44.
For an extended discussion, see Stanford University, Center for the Study of Language and Information, “Theories of Criminal Law,” Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/criminal-law/.
Lippman, Law and Society, 23.
Allen, et al., Comprehensive Criminal Procedure, 6.
Geoffrey R. Stone and David A. Strauss, “The Legacy of the Warren Court,” American Heritage, Winter 2020, Vol., 64, Issue 1, https://www.americanheritage.com/legacy-warren-court#.
Herbert L. Packer, “Two Models of the Criminal Process,” University of Pennsylvania Law Review, November 1964, Vol. 113, No. 1; “Courts, the Police, and the Rest of Us,” Journal of Criminal Law and Criminology, Vol. 57, No. 3, 1966; The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968).
Packer, “Two Models of the Criminal Process,” 9.
Packer, “Two Models of the Criminal Process,” 10.
Packer, “Two Models of the Criminal Process,” 16.
Packer, “Two Models of the Criminal Process,” 13.
Allen, et al., Comprehensive Criminal Procedure, 6.
Report by the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (Washington: United States Government Printing Office, February 1967), 7.
Theodore F. T. Plucknett, A Concise History of the Common Law (Indianapolis: Liberty Fund 2010 reprint of fifth edition originally printed by Little, Brown and Co., 1956), 3.
Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1993), 20.
Friedman, Crime and Punishment in American History, 4.
Friedman, Crime and Punishment in American History, 4.
Friedman, Crime and Punishment in American History, 5.
A good measure of power is wealth. “The median white family had more than ten times the wealth of the median black family in 2016. . . . The widening racial wealth gap disadvantages black families, individuals, and communities and limits black citizens’ economic power and prospects, and the effects are cyclical.” Nick Noel, et al., “The Economic Impact of Closing the Racial Wealth Gap,” McKinsey & Company, August 13, 2019, https://www.mckinsey.com/industries/public-sector/our-insights/the-economic-impact-of-closing-the-racial-wealth-gap#; “the racial wealth gap is not the result of individual missteps but is driven by systemic barriers such as structural racism, policies, programs, and institutional practices that facilitate wealth building for white families while inhibiting or stripping wealth from African American families.” Kilolo Kijakazi, “50 Years after Martin Luther King’s Death, Structural Racism Still Drives the Racial Wealth Gap,” Blog of the Urban Institute, April 6, 2018, https://www.urban.org/urban-wire/50-years-after-martin-luther-kings-death-structural-racism-still-drives-racial-wealth-gap. Another measure is health. See, for example, Maanvi Singh, “‘Long Overdue’: Lawmakers Declare Racism a Public Health Emergency,” The Guardian, June 12, 2020, https://www.theguardian.com/society/2020/jun/12/racism-public-health-black-brown-coronavirus.
Friedman, Crime and Punishment in American History, 5.
Allen, et al., Comprehensive Criminal Procedure, 4.
Allen, et al., Comprehensive Criminal Procedure, 569.
William J. Stuntz and Joseph L. Hoffman, Defining Crimes, second edition (New York: Wolters Kluwer Law & Business, 2014), 2.
For a general discussion of the classification of crimes, see Wayne R. LaFave, Criminal Law, fourth edition (St. Paul, MN: West Publishing Co., 2003), Section 1.6.
GA Code § 17-10-3 (2018).
Lawrence M. Friedman, Crime Without Punishment: Aspects of the History of Homicide (New York: Cambridge University Press, 2018), 1.
For general discussions of the law of homicide, see chapter 10, “Homicide,” in Matthew Lippman, Contemporary Criminal Law: Concepts, Cases and Controversies (Thousand Oaks, CA: Sage Publications, Inc., 2019); chapter 14, “Murder,” in LaFave, Criminal Law; Stuntz and Hoffman, Defining Crimes 609–11.
LaFave, Criminal Law, Section 15.1.
Lippman, Contemporary Criminal Law, 293; Plucknett, A Concise History of the Common Law, 445–46.
Stuntz and Hoffman, Defining Crimes, 609.
Ga. Code § 16-5-1 (a) (2018).
Ga. Code § 16-5-3 (a) (2018).
For a textbook discussion of direct and circumstantial evidence, see Jefferson L. Ingram, Criminal Evidence, eleventh edition (Waltham, MA: Elsevier Books, 2012), 98–104.
Clint Van Zandt, “The Real World vs. the CSI Syndrome,” The Abrams Report, NBC News, http://www.nbcnews.com/id/8802371/ns/msnbc-the_abrams_report/#.XtZkssZ7lE4.
Friedman, Crime Without Punishment, 14.
Friedman, Crime Without Punishment, 15.
Friedman, Crime Without Punishment, 18.
For overviews of the Simpson and Anthony trials and evidence, see Christo Lassiter, “The O.J. Simpson Verdict: A Lesson in Black and White,” 1 MICH. J. RACE & L. 69 (1996), https://repository.law.umich.edu/mjrl/vol1/iss1/3; Jennifer Dearborn, “The Case of Casey Anthony: Defending the American Jury System,” Rutgers Law Record, August 11, 2011, https://lawrecord.com/2011/08/11/the-case-of-casey-anthony-defending-the-american-jury-system/.
John Berendt, Midnight in the Garden of Good and Evil (New York: Vintage Books, 1999).
Dep Kirkland, Lawyer Games: After Midnight in the Garden of Good and Evil (Indianapolis: Dog Ear Publishing, 2015).
From author’s interview with Dani Jo Carter.
“Key Witness Gives Account of Night Ga. Lawyer Fatally Shot His Wife,” CBS News, March 19, 2018, https://www.cbsnews.com/news/key-witness-gives-account-of-night-ga-lawyer-fatally-shot-his-wife/.
“The Kathryn Steinle Murder Trial: Why the Jury and Trump Saw Two Different Cases,”
Los Angeles Times, December 2, 2017, http://www.latimes
.com/local/lanow/la-me-kate-steinle-analysis-20171202-story.html.
Matt Stevens, Thomas Fuller, and Caitlin Dickerson, “Trump Tweets ‘Build the Wall’ After Immigrant is Acquitted in Kathryn Steinle Case,” New York Times, November 30, 2017, https://www.nytimes.com/2017/11/30/us/kate-steinle-murder-trial.html.
“Why Was Officer Peter Liang Convicted?” The Atlantic, March 3, 2016, https://www.theatlantic.com/national/archive/2016/03/peter-liang-police-shooting/471687/.
Jaeah Lee, “Why Was Peter Liang One of so Few Cops Convicted for Killing an Unarmed Man?” Mother Jones, April 8, 2016, https://www.motherjones.com/politics/2016/04/peter-liang-police-conviction-nypd/.
“Why Was Officer Peter Liang Convicted?”
Bill Torpy, “Tex McIver Is Unlikable and Dangerous. But a Murderer?” Atlanta Journal-Constitution, April 13, 2018, https://www.ajc.com/news/local/torpy-large-tex-mciver-unlikable-and-dangerous-but-murderer/bfxrXelfmc
Xpd5My7716pJ/.
James H. Welcome, “Carjacking Epidemic Plagues the City of Atlanta,” NewsmakersLive, March 15, 2017, http://newsmakerslive.com/carjacking-epidemic-plagues-city-atlanta/; Christopher Coble, “Carjacking Spike in Atlanta: What Are the Charges and How Can You Avoid Being Carjacked?” Findlaw Blog, September 6, 2016, https://blogs.findlaw.com/blotter/2016/09/carjacking-spike-in-atlanta-what-are-the-charges-and-how-can-you-avoid-being-carjacked.html; U.S. Department of Justice, U.S. Attorney’s Office, Northern District of Georgia, media release, “Five Sentenced in Violent Carjacking Spree Involving Seven Carjackings in Four Counties,” November 19, 2015, https://www.justice.gov/usao-ndga/pr.
See, for example, “Carjacking Suspect Arrested after Chase,” Atlanta Journal-Constitution, August 29, 2015; “Suspects in Midtown Carjacking Arrested,” Atlanta Journal-Constitution, October 16, 2015; “Carjacking Victim Fought until the End,” Atlanta Journal-Constitution, November 15, 2015 ; “4 Atlanta Teens Held in Cobb Carjacking, Slaying,” Atlanta Journal-Constitution, December 15, 2015; “Three Arrested in Attack at Clark Atlanta,” Atlanta Journal-Constitution, May 7, 2016; “Woman Hits, Kills Pedestrian, Goes on Carjacking Spree,” Atlanta Journal-Constitution, May 12, 2016; “Woman with Baby Reports Carjacking,” Atlanta Journal-Constitution, June 20, 2016; “Boy, 8, Dies after Two Days on Life Support,” Atlanta Journal-Constitution, July 1, 2016; “Man Arrested after Officer Shot at in Chase,” Atlanta Journal-Constitution, July 6, 2016; “Man, 77, Shot in Carjacking Attempt,” Atlanta Journal-Constitution, August 29, 2016 (articles available in Atlanta Journal-Constitution online archives).
“Carjacking Suspect Arrested after Chase.”
“Woman with Baby Reports Carjacking.”
Bill Torpy, “Tex McIver is Unlikable and Dangerous. But a Murderer?”
Allen, et al., Comprehensive Criminal Procedure, 6.
Shannon McCaffrey, “Detective in Tex McIver Murder Trial—‘Accidents Happen,’” WSB-TV, April 22, 2019, https://www.wsbtv.com/news/local/atlanta/tex-mciver-murder-trial-day-14/724196376/; “Prosecutor: Gaps in Police Investigation of Tex McIver,” Atlanta Journal-Constitution, March 31, 2018 (available in Atlanta Journal-Constitution archives); “The Cops vs. the DA,” Breakdown, Atlanta Journal-Constitution, April 8, 2018, https://www.stitcher.com/podcast/the-atlanta-journalconstitution/ajc-breakdown/e/54020636.
“Reckless conduct” is defined thusly in Georgia law: “A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor,” GA Code § 16-5-60 (b)(2018).
Fennessy, “Tex and Diane McIver Had It All.”
“Joseph Henry Beasley, Biography,” The History Makers, https://www.thehistorymakers.org/biography/joseph-henry-beasley-41.
“Black Activists Concerned about Handling of McIver; Some Worry that Atlanta Lawyer Getting Special Treatment,” Atlanta Journal-Constitution, October 25, 2016 (available in Atlanta Journal-Constitution archives).
“Black Activists Concerned about Handling of McIver; Some Worry that Atlanta Lawyer Getting Special Treatment.”
This description of the 1990 shooting, charges, and their disposition is based on “Tex McIver Faced Charges in 1990 Shooting of Teens’ Car,” Atlanta Journal-Constitution, October 18, 2016, https://www.myajc.com/news/local/tex-mciver-faced-charges-1990-shooting-teens-car/NgCSQDruQjiEL6gCVfsW7I/; “McIver Feared Crime, but Seemed to be the Menace,” Atlanta Journal-Constitution, October 23, 2016 (available in Atlanta Journal-Constitution archives); DeKalb County Public Services Department, Police Services Incident Report, February 28, 1990; DeKalb County Public Services Department, Police Services, Supplemental Report, April 5, 1990; DeKalb County Police, crime scene and property and evidence reports, February 28, 1990, undated witness statements, and arrest report, March 27, 1990; Dekalb Superior Court, Indictment, “The State versus Claud Lee McIver, III,” May 19, 1990; DeKalb Superior Court, Order, November 29, 1990.
“McIver Feared Crime, But Seemed to be the Menace.”
See American Bar Association, “Criminal Justice Standards for the Prosecution Function Fourth Edition (2017),” https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/; National District Attorneys Association, “National Prosecution Standards Third Edition,” https://ndaa.org/resources/publications-videos/.
Richard E. Nisbett and Dov Cohen, Culture of Honor: The Psychology of Violence in the South (Boulder, CO: Westview Press, Inc., 1996), 4.
Nisbett and Cohen, Culture of Honor, 5.
Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South (New York: Oxford University Press, 2007), 3.
Wyatt-Brown, Southern Honor, 16.
Wyatt-Brown, Southern Honor, 371.
Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the 19th-Century American South (New York: Oxford University Press, 1984), 18.
Wyatt-Brown, Southern Honor, 371.
Wyatt-Brown, Southern Honor, 53.
Nisbett and Cohen, Culture of Honor, 92.
Christian Boone, “Trial Watchers Consumed by McIver Saga and Power Couple’s Life,” Atlanta Journal-Constitution, April 5, 2018, https://www.ajc.com/news/crime--law/trial-watchers-consumed-mciver-saga-and-power-couple-life/4tg9LgIuE7ec4c2TNZ7qCJ/.
“Apology Issued after Atlanta Officer Draws Gun on 82-Year-Old Activist,” Atlanta Journal-Constitution, September 27, 2019, https://www.ajc.com/news/breaking-news/apology-issued-after-atlanta-officer-draws-gun-year-old-activist/75RUCnMl2sSSukgxQtV01H/.
“Handling of Police Chief’s Case Sparks Debate,” Atlanta Journal-Constitution, March 23, 2015 (available in Atlanta Journal-Constitution archives).
“Handling of Police Chief’s Case Sparks Debate.”
David Markiewicz, “Former Peachtree City Chief Pleads Guilty in Shooting of Ex-wife,” Atlanta Journal-Constitution, August 13, 2015, https://www.ajc.com/news/crime--law/former-peachtree-city-chief-pleads-guilty-shooting-wife/jJcxZvxhzWSyCwvQVrdsfM/.
Jenny Jarvie, “Georgia Sheriff Who Shot and Wounded Friend Was Acquitted in Previous Case,” Los Angeles Times, May 14, 2015, https://www.latimes.com/nation/la-na-georgia-sheriff-20150514-story.html.
Tammy Joyner, “First Offender Act Leaves Clayton Sheriff Hill without Criminal Record,” Atlanta Journal-Constitution, August 30, 2016, https://www.ajc.com/news/local-govt--politics/first-offender-act-leaves-clayton-sheriff-hill-without-criminal-record/zM0TijWDs1rJXWK5TiysOO/.
Complaint and Demand for Jury Trial, Butler V. Staes, U.S. District Court for the Central District of Illinois, filed January 21, 2020.
This account is based on Complaint and Demand for Jury Trial, Butler V. Staes; Alex Horton, “A Black Student Left His Team Bus to Stretch. Police Swarmed and Put a Gun to His Head, Lawsuit Says,” Washington Post, February 15, 2020, https://www.washingtonpost.com/nation/2020/02/15/jaylan-butler-aclu-lawsuit/; Barb Ickes, “Quad-City Police: Swimmer in ACLU Lawsuit Resisted Arrest,” Quad-City Times (Davenport, Iowa), April 18, 2020, https://qctimes.com/news/local/quad-city-police-swimmer-in-aclu-lawsuit-resisted-arrest/article_ca5339a7-33e4-585a-9aa8-55a420478b55.html.
Horton, “A Black Student Left His Team Bus to Stretch.”
Complaint and Demand for Jury Trial, Butler V. Staes.
Complaint and Demand for Jury Trial, Butler V. Staes.