Crimes & Judgement


Donald … Byron … Teenagers Shot …

And a much bigger question we’d rather not face


imagesAt the end of April, two disparate events happened in the same 24-hour news cycle. Both are still being heard on appeal in the respective venues in which their cases have been tried. (One party, however, seems to have just now given up his fight.) On first glance, they couldn’t seem to have less in common. One involves a wealthy owner of a professional basketball team – a team whose name was well-known even if its owner’s was not-so-well-known … at least until the last month or so. The other involved a retired man in a small town in central Minnesota. Although his case was a high-profile one on the local news scene, it garnered scant attention nationally. Offensive statements by both men, albeit in very different circumstances, contributed to the judgments made against them. But that’s only one point of connection.   As Laura Holt would say at the opening of the Remington Steele television series, “Follow …”

untitled (5)The one making headlines in the national (and even international) news was, of course, Donald Sterling. Even if you don’t pay much attention to the NBA in particular or to sports in general, it was all but impossible to miss hearing the story of the remarks Mr. Sterling made to his girlfriend in private, not knowing he was being recorded. The recording of his racially charged remarks was made public and backlash ensued. After an investigation that determined the male voice in the recording was indeed that of Los Angeles Clippers owner Donald Sterling, NBA Commissioner Adam Silver promptly banned Sterling from the NBA for life, imposed the maximum fine possible, and vowed to force the sale of the team to a new owner.

imagesCAFG5ZHTA few raised the question of privacy – should Donald Sterling be held publically accountable for something he said in private? Wasn’t the secret recording an invasion of his privacy? And since it was in private, why was any of this the public’s business? Those are fair questions. But those questions and the secret recording are over shadowed by the much bigger question: Given how much public evidence already existed of Mr. Sterling’s racist behaviors over the years –imagesCAKDAR7N from complaints of a “plantation mentality” in the organization by various players … insights from former coach and NBA legend Kareem Abdul Jabbar to a wrongful termination lawsuit by former VP and GM (and NBA all-star) Elgin Baylor to a housing discrimination case by the Justice Department that was settled out of court – given all of this: Why didn’t the NBA take action before now?!

Plenty of evidence of Mr. Sterling’s racist behaviors was public before the past month. Real people were directly harmed by his actions (particularly in the housing discrimination). But no one in the NBA took action or even seemed to notice. Perhaps the time for action came not so much because of the general attitude Mr. Sterling expressed in those recorded comments but because he dissed one of the legends of the game, Earvin “Magic” Johnson. While it’s highly unlikely that Mr. Johnson would suffer much from Mr. Sterling’s dislike of his own girlfriend posting a picture of herself at a game with one of the legends of the game, such a poor attitude toward of player of Magic Johnson’s stature (someone who helped make the league the financial and commercial powerhouse it is today) simply could not be tolerated by the NBA organization.

So we get righteously exercised over the terrible person that Mr. Sterling clearly is, bemoan and decry the racist attitudes he voiced, and expel him from the rest of decent society. We feel so much better now, knowing we are not like that. Then we heave a collective sigh of relief and turn our attention to less troubling things instead of looking deeper into the questions of race and power and class that this situation raises in the NBA and elsewhere in our society.

Enter Byron Smith …

untitled (6)Byron Smith is a retired security systems engineer who lived (until very recently) in Little Falls, Minnesota – a setting about as far from the glitz and glamor of Los Angeles as one could get. Little Falls is a small city in central Minnesota at the south end of wide spot in the Mississippi River. It’s along US Highway 10 west and little south from Lake Mille Lacs, northwest of Saint Cloud and the Twin Cities. The greatest claim to any sort of fame for Little Falls is that it was the boyhood home of famed pioneering aviator Charles A. Lindberg. It’s the kind of place where any murder case would be big news. But the one that a jury was deliberating at the same time NBA Commissioner Adam Silver was handing down his verdict on Donald Sterling, was particularly heinous.

On Thanksgiving Day in 2013, two teenagers broke into Byron Smith’s home. The kids had been involved in other break-ins around town and Mr. Smith’s home had been broken into several times before then. (What was never quite clear was whether these two teens had broken into his house previously.) On that Thanksgiving Day, Mr. Smith moved his truck from its customary parking place in front of his house to a location out of sight, supposedly so it would not be damaged while he cleaned his garage. But instead of cleaning the garage, he went back inside the house … unscrewed some light bulbs from fixtures … gathered up some snacks and things to drink … and then went downstairs to the basement where he loaded his guns and sat down to pass the time reading a book.

untitled (8)Mr. Smith heard the sounds of two people entering his house. But he did not call out to the intruders or make any other effort to scare them away. He did not call the police. He picked up his gun and waited in silence. As one of the intruders came down the stairs into the basement, Mr. Smith shot him several times, first wounding Nick Brady, a 17-year old, and then killing him. He wrapped the young man’s body in a tarp, so it wouldn’t bleed all over the place. But he didn’t call the police or warn the other intruder. He waited as Nick’s 18-year old cousin untitled (7)Haile Kifer called out to her cohort, trying to discover where he was, if he was okay. Mr. Smith waited in silence and shot her as she came down the steps into the basement. Much as he did with her cousin, when she had tumbled down the remaining steps, he killed her with another shot. But he didn’t call the police. During the events and in the hours after, the audio recording captured a number of things Mr. Smith voiced out loud regarding his victims – “Now you’re dead, bitch … “I felt like I was cleaning up a mess” … “I was doing my civic duty”  … “I don’t see them as human.  I see them as vermin.”

Within hours, concerned family members were seeking the whereabouts of the missing teens. But Byron Smith did not break his silence. The next day, he spoke with a neighbor … and the neighbor persuaded him to contact the police. He did and an investigation ensued. Clearly, Mr. Smith had the right to defend himself and his property against intruders. The teens had been in violation of all legal and moral standards when they entered his house. But did Mr. Smith’s action cross a line between self-defense and murder? The police investigators and the county attorney decided that line had been crossed. At the conclusion of the trial, the jury convicted Mr. Smith of four counts of murder.

The details of what happened inside Mr. Smith’s house were known in large part because of video and audio recordings from the home security system that Mr. Smith had installed and personally turned on that Thanksgiving Day as he prepared to wait for intruders. (The surveillance recordings show Nick moving around outside the house, looking in windows for more than ten minutes before he attempted to enter.) Because Mr. Smith made the recordings, none of the questions regarding possible violations of privacy have been raised by this case, as they have in the case of Donald Sterling.

imagesCANIKG5G But the Smith case in Little Falls does raise questions of the right to self-defense, property rights, and “Stand Your Ground” types of laws … which Minnesota, unlike Florida and some other states, does not have. From that angle, the Smith case invites comparisons to some other high profile cases in which unarmed teenaged suspects were shot to death by men – the Florida cases of George Zimmerman and Michael Dunn. Like Mr. Smith, Mr. Zimmerman’s suspicions regarding Trayvon Martin were aroused by previous break-ins in his community. Also like Mr. Smith, Mr. Zimmerman claimed self-defense and cited the injury to his head as proof he was the one being attacked. In the second case, untitled (9)Mr. Dunn, like Mr. Smith, did not contact police after shooting into a vehicle full of teenagers, killing one of them, Jordan Davis. But unlike Mr. Smith, Mr. Zimmerman was found not guilty of murder. Although the jury in Mr. Dunn’s trial found him guilty of the attempted murders of the other teens in the car, the jurors were deadlocked on the question of Mr. Dunn’s guilt in the death of the one teenager he actually killed. These differences between the outcome in Minnesota from those in Florida is the connection point between the low-profile murder trial in Little Falls and the public opinion trial(s) of Donald Sterling.

imagesCAFXM5L9Whereas both Nick and Haile were clearly engaged in criminal behavior when they broke into Byron Smith’s home, George Zimmerman only suspected that Trayvon Martin might be contemplating a similar action. There was no evidence prior to or found in the aftermath that validated Mr. Zimmerman’s suspicions. Jordan Davisuntitled (10) was only guilty of playing offensive music too loud – a commonplace behavior among teenagers that, although extremely annoying, is not illegal. Neither Trayvon nor Jordan were engaged in anything illegal at the time each was shot to death. Yet, their status as crime victims was widely disputed. However, most readily agreed that, although Nick and Haile should never have been inside of Byron Smith’s home, the proper penalty for breaking and entering is not summary judgment and execution on the spot. Therefore, they were the victims in this situation.

In short, there was no trashing of the reputations of Nick and Haile before or after Mr. Smith’s trial. Yes, they were using drugs – abusing over-the-counter medications, prescriptions they could get their hands on, using stolen property to fund their drug habits.   Nick had an intoxicating amount of cough syrup in his system at the time of death. Apparently a number of teens in Little Falls are engaged in this (much as anywhere else). Yes, Nick and Haile were definitely on the wrong track. Yes, they should face the consequences of the crimes they committed, consequences that could include time in jail (but certainly not execution). It might have been the wake-up call they needed to change their ways and turn their lives around, to become the kinds of people their parents had always hoped they would be. After all, these two were essentially good kids who lost their way, decent kids who deserved another chance.

Perhaps it’s just part of “Minnesota nice” not to speak ill of the dead. But aside from the obvious point that, if Nick and Haile had been having Thanksgiving dinner with their families (as they should have been doing) they would still be alive today, very little was said to dispute this narrative of good kids who lost their way. Some have complained that the verdict gives a green light to all would-be criminals out there to break into any place they want – which is only a gross exaggeration of the situation and not in any way a personal attack on these two victims.

This prevailing narrative of two good kids who lost their way stands in sharp contrast to the public trashing of the reputations of Trayvon Martin and Jordan Davis in Florida (and in the national news) during the time leading up to the trials of their killers. Time and time again, the families of these victims were called upon to show that their sons did not deserve to be shot. In contrast to Nick and Haile, the general assumption seemed to be that if Trayvon or Jordan had not been doing something criminal when they were shot, they would have … eventually … it was just a matter of time. There was an implication that their shooters may have done society a favor by eliminating these future criminals from our midst. (“Vermin,” as Byron Smith said of the teenagers he shot.)

untitled (12)Maybe it’s just that Minnesota is a little nicer, a little more civilized than Florida. We’ll see.  Two weeks ago, another heinous case erupted in Minnesota, this time in Mankato (the “big city” the Ingalls would sometimes mention or visit on Little House on the Prairie). Isaac Kolstad, a 24-year old father and former football player for Minnesota State University, was horrifically beaten to within an inch of his life; two weeks later, he is still in critical condition. The principal assailant was Philip Nelson, a 20-year old former quarterback for the University of Minnesota untitled (11)who had just transferred to Rutgers University to play football there. A second assailant fled the scene; he was apprehended later in the week.  The original headline in the Star Tribune (the largest paper in the state) read: “Flurry of blows leaves 2 lives in ruins.” The headline suggests both the assailant and the victim are suffering rather equally in the aftermath. Nothing could be farther from the reality. The assailant, reportedly “kicked the victim’s head like a soccer ball.” The victim has been in critical condition since the attack; if he does survive, his life will never ever be as it was. Why this confusion of victim and attacker and who is really suffering? The attackers in this case were white. The victim is black.

But that’s Mankato and the outcome remains to be seen. Meanwhile, back in Little Falls … Why, in the case of these two teenagers, who were clearly engaged in criminal activity when they were shot, is it easier to believe they were victims and to find their killer guilty of murder than in the cases of two other teenagers who were doing nothing illegal at the times when they were attacked and shot to death? Unlike Trayvon and Jordan, Nick and Haile were white. That makes a difference in any location. Perhaps the citizens of Little Falls are more sensible than those in Orlando or Jacksonville. Perhaps “Stand Your Ground” laws muddy the line between self-defense and murder. But in murder cases across the country, the race of the dead victim trumps alluntitled (4)

And that brings things back to the fracas over Donald Sterling’s remarks. People are outraged by the racism of that – and rightly so. So we excise the offender from our midst and prove that we are not like him. We are crusaders for justice, equality, fair treatment. Thus satisfied, we sit back on our newly won laurels and don’t look to the deeper questions of the role of race in our society and genuine injustices.

Speaking about lingering disparities on the occasion of the 60th Anniversary of the Brown vs. Board of Education, US Attorney General Eric Holder quoted Supreme Court Justice Sonia Sotomayor’s dissent in the Michigan college admissions case, saying: we must not “wish away, rather than confront, the racial inequality that exists in our society. … The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.'”

Suddenly booting out Donald Sterling after years of publicly demonstrated racist behaviors circumvents the kind of deeper exploration that would lead to a more just, more fair, less racialized society. The causes for outrage are real. But spend the energy where it will make a difference, where it will work towards the lofty ambition in the Pledge of Allegiance – that our country truly become a land “with liberty and justice for all” … for Trayvon and Jordan as well as Nick and Halie … for the nameless ones struggling for housing against the likes of Donald Sterling.