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Kimani Gray: Guilty Until Proven Innocent | The Nation

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Diary of a Mad Law Professor

Kimani Gray: Guilty Until Proven Innocent

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Protestors at a vigil for Kimani Gray
Demonstrator Fatimah Shakur speaks during a vigil held for Kimani Gray in East Flatbush, Brooklyn, on Wednesday, March 13, 2013. The 16-year-old was shot to death on a Brooklyn street last Saturday night by plainclothes police officers. (AP Photo/John Minchillo)

The only thing anyone can agree upon is that on Saturday, March 9, 16-year-old Kimani Gray was shot seven times by two New York Police Department officers in East Flatbush, Brooklyn. The police fired eleven shots. Four hit him in the front and side of his body, three in the back.

Gray’s mother says he and his friends were on their way back from a birthday party. Police saw a gang. A neighbor watching from a window says Gray was unarmed, and multiple witnesses say that Gray pleaded for his life. Police say he pulled a loaded gun. Some media reports say the officers were highly decorated for bravery. Other reports note that they had cost the department more than $215,000 in payouts for at least five lawsuits alleging civil rights violations. Police say they found a gun at the scene. A witness says she never saw a gun, and skeptics wonder whether it was a “drop” by corrupt officers.

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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Sharing the headlines with Kimani Gray was an upcoming trial to decide a class action lawsuit contesting the NYPD’s stop-and-frisk program. One plaintiff has been stopped twenty-eight times. Of those stopped, 90 percent are black or Latino; 90 percent of stop-and-frisks result in no arrest. Many white New Yorkers, including the mayor, praise the program as having lowered the crime rate and clamped down on guns. But criminologists and the New York Civil Liberties Union, supported by FBI data, dispute any causal connection: crime has gone down by the same rates all over the United States, and in cities with no such aggressive policy. And black New Yorkers, particularly those in targeted neighborhoods, cite the living-under-lockdown difficulties of just getting to work or school on time when one is stopped, yelled at, searched—over and over and over again.

Then there were the headlines about the NRA’s Wayne LaPierre giving a “fiery” speech at the annual meeting of the Conservative Political Action Conference in National Harbor, Maryland. His references were laced with light racial code, assuming his overwhelmingly white audience was innately and easily distinguishable from “gangs” and the denizens of Chicago. Invoking the language of “stand your ground” laws, he urged them to “take your own stand. Plant your feet firmly in the foundation of freedom.”

What if LaPierre and his audience had been black? After all, young African-American men are most likely to be the innocent victims of gunfire and, in principle, most likely to have cause to invoke self-defense. Of course, a black man expressing such public zeal for weaponry—and riling up a cheering base, no less—without immediate and repressive consequence is harder to imagine. But as long as we’re trying, imagine a world of equal opportunity where LaPierre’s white audience members were as likely to be stopped and frisked on their way out the door of the convention hall.

The degree to which race and geography have become an overly capacious proxy for narratives of criminality is highlighted by yet another story that unfolded soon after Kimani Gray’s death. Baby Survives Harlem Mother’s Death Leap, read a New York Post headline about a woman who committed suicide by leaping eight floors to her death. It is the word “Harlem” that instantly shapes the assumptions about what happened: she must be black, desperately poor, a bad mother, probably on drugs. On its website, the Daily News headlined the same story “Manhattan mother jumps eight stories to her death with her infant son strapped to her chest; baby survives with minor injuries.” With “Manhattan” as the modifier, this mother was more likely to be seen as selfish, desperately ambitious and not on enough drugs for what was assumed to be postpartum depression. It turned out that she was a white employee of the Manhattan State Supreme Court and a graduate of Columbia Law School. (Of course, there was a stereotyped narrative for that as well: Glenn Beck’s news site, The Blaze, reported the story as Lawyer Mother Leaps From 8-Story Building. Commentary from readers was peppered with surmise about whether the woman was a feminazi with a liberal death wish and with relief that there was one less lawyer in the world.)

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A consistent theme in all these disparate news stories is the demise of the presumption of innocence. For those in already criminalized communities, this loss amounts to the abandonment of due process under the law. To presume that everybody is guilty of something is to license responses that assume no need for proof; it undoes our system of justice by validating the notion that we know from the outset what guilt looks like. It enables a literal rush to judgment. It unleashes a killing instinct that shrugs at tragedy as “hindsight.” 

The presumption of innocence allows for a moment of collective hesitation before we indulge the voices in our heads—the stereotypes as well as the archetypes that inevitably inflect a culture. It is the collective deep breath that allows us to imagine the humanity in each of us, the possibility of mistake. Crime happens. But despite the horrific rates of segregation, violence, incarceration and inequality at every stratum of our nation, we are not yet in a full-blown war against ourselves. To reorganize the structures and expectations of civil society as though we were, however, assures the same, and locks us into the unbreachability of a dangerously deepening divide.

Back in Brooklyn, demonstrators against New York’s stop-and-frisk policy have merged with those who mourn Kimani Gray. There have been calls—by a familiar cast of noisy people, disgruntled people, black people, poor people, weary people, people smelling of grief and despair—for sixteen days of street protest, a day for each year of Gray’s life. In response, police have erected barriers and nets to contain what they feel will be rioting and looting.

In October of last year, Christie Thompson wrote that nearly every single community member speaking at recent hearing on stop-and-frisk opposed the NYPD’s controversial policy.

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