Dunn trial: First the journalist, then the professor!


Kristof agonistes: Nicholas Kristof stirred a bit of a mini-debate with his recent column about the absent professors, who ought to help out a bit more.

For our previous post, click here.

In the debate which Kristof stirred, Josh Marshall described his decision to leave the academy. We remembered what the old, extremely smart Marshall was like before he was kidnapped and replaced.

That said, we began having visions of Kristof in Hell when we read the latest piece at Salon by Professor Brittney Cooper.

Cooper’s piece concerns the Michael Dunn murder trial. More specifically, she pens some thoughts in academese about Creshuna Miles, one of two jurors who have been interviewed about the trial.

The problem here starts with a journalist. Miles was interviewed for CNN by Alina Machado, whose work was completely incompetent. As aired by Anderson Cooper, this is the way things started:
MACHADO (2/20/14): What did you think of Michael Dunn?

MILES: I honestly think he was a good guy. I think he's a good guy. I don't think he hates everybody. I don't think he walks around wanting to shoot everybody. I think that he made bad decisions.

MACHADO: You still think he's guilty of murder, though.

MILES: Yes. I really think he's guilty of murder, but not guilty as charged.

MACHADO: First degree. You don't think he's guilty of first degree?

MILES: I think he's guilty of second degree. I was convinced. I was honestly convinced that he was in self-defense until he chased the car down and started shooting it more. That's where my decision-making process comes, well, even if initially you didn't have an opportunity to take yourself out of the situation, to stop, running behind a car and shooting more, that's where you completely push your limits.
Say what? Already, Miles has said at least two things which seem perhaps contradictory:

She has said she thinks Dunn was guilty of second-degree murder, presumably in the case of Jordan Davis, the only person who died.

She has also said that she thinks Dunn was acting in self-defense “until he chased the car down and started shooting it more.” But self-defense is a defense against murder. For that reason, it’s hard to know why she says Dunn was guilty of murdering Davis, who was shot and killed in the first part of the incident, before Dunn shot at the fleeing car.

We can imagine a clarification of this. Machado didn’t seek one.

Miles also says that she thinks Dunn was “guilty of murder, but not guilty as charged.” We have no idea what that means.

Machado inquired about none of this. As aired by Cooper, this is the way the interview continued:
MACHADO (continuing directly): Which person, which witness made the biggest impact for you?

MILES: Actually Rhonda Rouer. You can tell she was nervous, she was shaking, she was trembling.
And so it went from there. Based upon the transcripts we’ve seen, Machado never attempted to clarify any of this instant confusion.

Did Miles even vote for a murder charge against Dunn? Based upon this bungled interview, we have no clear idea.

There’s one other part of the interview which ought to be noted. Near its end, the question of race was botched:
MACHADO: The protests [against the verdict], you mentioned to me when we were chatting on the phone, that you—that's the real reason why you came out here.

MILES: Yes. Because I just want everybody to understand that everybody is making this a white and black thing. And it's not. In our decision-making process nobody brought up, not one race. Never. It was never brought up.

MACHADO: If this case wasn't about race, then what was it about for you?

MILES: It was about justice.

MACHADO: Justice?

MILES: When I walked into it, I just wanted to bring justice to whoever it was. If it was Michael Dunn I wanted to bring justice to him. If it was Leland, Kevin, Tommy or Jordan, I wanted to bring justice to them.
What did Miles mean when she said “this” wasn’t “a white and black thing?”

Plainly, she seconded another juror who had already said that race wasn’t discussed during the deliberations. Beyond that, what did she mean by the statements we’ve posted?

The answer is quite unclear. On some other CNN shows, this additional brief exchange was aired, on a stand-alone basis:
MILES: I never once thought about, “Oh, this was a black kid, this was a white guy,” because that was—that wasn't the case.

MACHADO: So, the people who say here's another white guy who got away with shooting and killing a black kid, what would you tell them?

MILES: I would tell them that they really should knowledge themself on the law.
The connections there are quite unclear too. We’ve found no transcript where Machado tried to clarify Miles’ ideas about the possible role of race in the killing of Davis. Nor have we found any complete transcript of the interview.

In our view, Machado thoroughly bungled this interview. On CNN, people like Anderson Cooper just plowed ahead, pretending not to notice.

Then, along came the professor.

In our view, Professor Cooper is every bit as unhelpful as Journalist Machado was. This is the way she starts her piece at Salon:
COOPER (2/25/14): Last week, Creshuna Miles, Juror No. 8 in the Michael Dunn trial, gave an interview to CNN about the jury’s partial verdict. Although she believes that Michael Dunn is guilty of second-degree murder, a lesser charge for which the jury had the option to convict, she insisted that the case was “not about race,” that it never came up. Moreover, she believed Michael Dunn to be essentially “a good guy,” who made “bad choices.”

Startlingly, she also indicated that until Dunn ran down the street chasing Jordan’s three friends, she actually believed that Dunn acted in self-defense.
Cooper says Dunn’s statement about self-defense was “startling,” but she doesn’t specify why. She doesn’t seem to see that the statement may seem to contradict the claim that Dunn was guilty of murder.

She doesn't wonder what Miles meant when she said Dunn was “guilty of murder, but not guilty as charged.”

Whatever! After that first two paragraphs, Professor Cooper proceeds to drop a series of bombs on Miles’ 21-year-old head. This is the part of Cooper’s analysis which made us weep for Kristof:
COOPER: I’m not angry with Creshuna Miles. But I know her thinking, uninformed as it is, is dangerous. I know the justice system relies on the willing racial performativity of black people who are willing to discount the importance of race in matters such as these. Much like patriarchy requires the complicity and willing participation of women to continue, racism requires the complicity and willing, if unwitting, participation of black and people of color to continue.
“Performativity,” we mused. Is “performativity” a word?

In normal English, it isn’t a word; in academese, it is. According to the leading authority on the subject, performativity “is the process by which semiotic expression (in language or a symbol system) produces results or real consequences in extra-semiotic reality, including the result of constructing reality itself.”

And not only that! “In the frequently cited Butlerian vein of performativity, gestures and speech acts do not express an interior identity; they perform that very identity and even its assumed quality of interiority.” Summing up, then, performativity “reverses the idea that an identity is the source of more secondary actions (speech, gestures). Instead, it inquires into the construction of identities as they are caused by performative actions, behaviors, and gestures.”

Kristof wants the professors to help out more. We used to say things like that too.

Then, we read some work at the new Salon. We began reforming our view.


  1. In my experience, people have a bifurcated notion of concepts like murder. They see it as a moral issue and a legal issue, and it often seems to me the moral issue view predominates. For example, I have often talked to people who see abortion as murder. When I ask them about the legal consequences of such a view, such as whether girls who have abortions should serve life sentences, they just do not understand or see the relevance of the question. I believe that's because they are thinking in terms of morality, not law. That's why a juror can tell you, "I think he was guilty of murder, but not as charged." They are in effect distinguishing between legal and moral murder.

  2. Perfect criticism, and too darn bad this criticism is so necessary.


  3. So the short answer to your question, Bob, is that yes, "performativity" is a word. It's just one you've never read before. Which gives you permission to mock it.

    Now while you are focusing on individual words to parse, let's look at the forest.

    I agree with Professor Cooper that Creshuna Miles was a defense attorney's dream -- easy to manipulate into identifying with and humanizing the white guy in front of her instead of the absent black kid long in his grave.

    But there is one more thing I noticed about her as I watched her interview, and it is no put-down. It is merely a statement of what I perceive.

    Ms. Miles is a person of very limited intelligence. Well below average intelligence. As such, this was perhaps the first time in her life that somebody asked her to do something important, serve on a jury, and afterward, a national TV network was asking for an interview.

    You can see and hear her strain to sound intelligent and thoughtful, and to give the interviewer the answers she thought the interviewer wanted. Notice her answer to those who criticize the jury's decision, that they don't understand the role of a jury:

    "I would tell them that they really should knowledge themself on the law."

    In other words, a defense attorney's dream. And just like Rachel Jeantel before her, it is easy for a defense attorney to get the reaction he wanted.

    God only knows what Creshuna Miles was thinking in that jury room, because I am not sure Creshuna remembers any more. We do know that she must have agreed with the verdict, and I guess that there is small comfort in knowing that even though a white guy can gun down an unarmed black teen over loud music and claim self-defense, at least there is a line that says firing additional shots at a fleeing vehicle is against the law.

    1. It seems to me Cooper is correct in stating that the justice system depends on black people setting aside issues of race to achieve justice. If every case is decided based on racial concerns, as when jury nullification occurs, then justice cannot be achieved for individual people. This pits justice for a race (which itself is a social construct) against justice for individual people, and it is very hard for me to see why abstract justice trumps personal justice in a system that is supposed to enact justice in special situations. The cases with more abstract implications are supposed to be decided at the Supreme Court level, in my opinion. Practically, if all people do not believe that the justice system can and does set aside race in its efforts to decide cases, then vigilante action is encouraged. I don't think anyone wants that, no matter what their race.

    2. TDH doesn't mock "performativity" because it's a "word" he's never read; he mocks it because it's part of the absurd jargon of semiotics.

    3. > “Performativity,” we mused. Is “performativity” a word?

      So he looks it up and cuts and pastes the first definition he finds.

    4. How would you find out what it means?

    5. As someone familiar with semiotics and the Judith Butler text in Bob's citation, I take his point. It's pretty silly to go on TV and use that jargon to try to explain or communicate anything to a mass audience. A better communicator (or a better public intellectual) might be better be able to make their point without resorting to jargon.

  4. The problem is that Angela Corey, the same prosecutor who went after George Zimmerman, screwed up by charging Dunn with murder one in an obviously murder two case.

    Here are the differences:

    First degree murder falls into one of the following two categories: http://blogs.findlaw.com/blotter/2011/08/difference-between-first-second-degree-murder.html

    Premeditated, intentional killings
    Felony murder
    While second degree murder is either:

    An unplanned, intentional killing; or
    A death caused by a reckless disregard for human life

    There is absolutely NO evidence that Michael Dunn premeditated the murder of Jordan Davis. And I don't believe Corey even gave the jury the option to convict for murder two.

    This is not hard to understand. And I don't think people should look down on jurors who were not given a chance to make the appropriate ruling.


    1. HB,

      You seem to think that first degree murder requires premeditation along the lines of lying in wait or murder for hire. That's not true in Florida. Here's what the Florida Supreme Court says:

      The premeditation need not be for any particular length of time but it must be of sufficient duration to enable the slayer, under the circumstances of each case, to form a premeditated design -- an intention formed upon premeditation.

      Remember that Dunn claimed self-defense. So he admitted intent and probably premeditation. I can't blame Corey for thinking no sane jury would believe the defense claim, which was basically "Yeah, there was a shotgun. And it just disappeared. It was a phantom shotgun. That's the ticket."

      And you believe wrong. Second degree murder and manslaughter were lesser included charges, which the jury could have chosen.

      Dershowitz thinks Corey is mostly a bad tactician. He says she'd have been better off with second degree murder and a six-person jury allowed in such a case. He's also right that she overcharged in the Zimmerman case, but the law and the situation made that case unwinnable. I think the first degree charge against Zimmerman was a gamble to force a plea.

    2. First off, what made the Zimmerman case unwinnable is that the evidence overwhelmingly indicated that Trayvon Martin stalked and attacked George Zimmerman, that GZ had legitimate reason to fear for his life and to defend himself and that the case never should have been brought to trial. TM had almost four minutes to get back to where he was staying--more than enough time to get comfortably away from GZ and safely inside. Yet the fatal confrontation took place only about 150 feet from where GZ saw TM running away. Aside from the gunshot wound and abrasions on TM's fist all other injuries were Zimmerman's including a broken nose and multiple injuries to the back of his head from having it pounded into a concrete walkway. Rachel Jeantel, the prosecution's star witness, got on the Piers Morgan show after testifying and provided motive by saying that she told TM that GZ might be a gay guy trying to rape him just before everything went to hell. These details have, of course, been disappeared as they blow the popular narrative out of the water.

      I do not believe that there is anything in law called premeditated self defense, especially in a case among two people who have just met. The concept seems to defy reason itself.

    3. "the evidence overwhelmingly indicated that Trayvon Martin stalked and attacked George Zimmerman,"

      Yes. The guy who got out of his vehicle with a loaded gun was stalked and attacked by the unarmed kid who was trying to get away.

      The evidence is overwhelming.

    4. Too bad O.J. didn't live in Florida. He could claim his ex-wife and Goldman jumped him, beat him within an inch of his life, and he was forced to defend himself with his knife.

      Then Heironymous could spend the rest of his life turning O.J. into the victim.

    5. Braintree you are so full of shit.

      Zimmerman was absolutely not in any reasonable fear of death or great harm. Zimmerman's injuries were merely a mild blow to his nose which caused slight bruising and two superficial cuts on the back of his head. There is no evidence Martin caused any of Zimmerman's injuries, no evidence his nose was broken, no evidence his head was slammed against anything.

    6. "Howcum TM only made about 150?"

      Gee, I don't know. Maybe he was trying to hide from the guy with the gun chasing him?

      Of course, we'll never know why unless we ask him. Zimmerman took care of that.

    7. [T]he evidence overwhelmingly indicated that Trayvon Martin stalked and attacked George Zimmerman.

      There is absolutely no credible evidence that Martin "stalked" Zimmerman. In the legal sense, that would have been an impossibility; and there's no evidence for the vernacular sense either. There's clear evidence that Martin struck Zimmerman, but that's not necessarily an illegal act.

      GZ had legitimate reason to fear for his life and to defend himself

      There isn't the slightest credible evidence that GZ had any reason to fear for his life. He got in a fistfight and ended up with blackened eyes and a bloody nose. That doesn't mean that he wasn't reasonably fearful at the time, and that doesn't mean that he should have been convicted.

      [T]he case never should have been brought to trial.

      This is correct, but not for the reasons you claim.

      Rachel Jeantel, the prosecution's star witness, got on the Piers Morgan show after testifying and provided motive by saying that she told TM that GZ might be a gay guy trying to rape him….

      Nothing Jeantel could say over the phone could have provided motive. In fact, virtually everything that Jeantel testified to was hearsay. And that includes whatever effect her words may have had on T.M.

      I do not believe that there is anything in law called premeditated self defense,….

      You believe a lot of things that aren't true, especially about the law. I suppose it's possible that self-defense could lack premeditation if the defending party acted immediately and instinctually to a threat. I doubt that happens much, and it doesn't sound like it did in this case. Most people defending themselves find themselves under threat and in fear, and they undertake a consciously-considered plan to save themselves. Premeditation simply means thought preceding action.

      The state's witness described TM beating Zimmerman's head into the pavement on the stand.

      No, he didn't. The state's witness testified that he never saw a blow land. And Z's injuries are not consistent with having his head beaten in the pavement.

      And please explain what TM was doing with all that time he had to get away but didn't use.

      Can't be done. GZ killed the only person who could explain. T.M. had no legal obligation to "get away." He did nothing illegal in confronting GZ, and he might have done nothing illegal in striking GZ, even if he struck first. That determination would depend on knowing exactly what happened after the two came face to face, and we have only GZ's self-serving version.

      The law in Florida does not require a commensurate response to a threat. The key issue is reasonable fear, which can even be mistaken. Not all states' laws read that way, but Florida's do. The law in Florida requires that the state prove beyond a reasonable doubt that a killing is not self-defense. Not all states' laws read that way, but Florida's do. The law in Florida also gives defendants two shots at convincing a jury by a preponderance of the evidence that the law excuses them. Not all states' laws read that way, but Florida's do. When you kill the only rebuttal witness, the state has an almost insurmountable task in convicting you.

    8. There isn't the slightest credible evidence that GZ had any reason to fear for his life. He got in a fistfight and ended up with blackened eyes and a bloody nose.

      The stupidity of that comment and much of the rest of your analysis defies belief.

    9. I don't mind it when ignoramuses like you call me stupid. Really, it's OK. But why waste time making this about me?

      If there's credible evidence that GZ had any reason to fear for his life, then present it. You'll find that you can't. That's because we have only GZ's self-serving statements entered as evidence. That doesn't mean that he didn't reasonably fear for his life; that doesn't mean that the prosecution met its burden in proving that he didn't fear for his life. The only person whom we know had reason to fear for his life was Martin. Whether he had time to experience fear before Zimmerman killed him is unknown.

      If you think my "analysis" (presumably of the legal issues involved) is wrong, I await your correction. Your disbelief is irrelevant. It's often the case that an exposition will defy the credulity of the ignorant.

    10. Are you in 9th grade? My 9th graders are the only ones I've seen display that level of sophistry owing to underformed prefrontal cortexes

    11. No, I'm not in the 9th grade. I'm the oldest whore on the block.

      In cyberspace, anyone can play a junior-high teacher and throw around terms like "prefrontal cortexes." But since you have no way to actually judge the development of my prefrontal cortex or for that matter, my claim to be older than 15, why not point out flaws in my argument instead?

      The evidence introduced at trial is well-known. I try to restrict my claims to that set of facts. Have I got any of those wrong? For instance, there's a witness who saw two people fighting. Have I mischaracterized what he said?

      The law governing Florida homicides is also well known. Can you point out where I've made a mistake about that law?

      Again, this isn't about me. Which is a good thing, since you can't really know anything about me. This is about what I've written. And if it's incorrect or "sophistry," then you should be able to explain how that obtains. Without references to cortical development.

    12. "There isn't the slightest credible evidence that GZ had any reason to fear for his life. He got in a fistfight and ended up with blackened eyes and a bloody nose"

      The flaw in your thinking, which happens because you are too eager to come up with an argument and so you undermine your own logical capabilities, is that you are considering what is known of conditions that existed after the fact of the struggle such as the level of injury up to the point of the shooting.

      If you had permitted logic to inform you, you would also have considered that a person exhibiting credible evidence of having sustained a beating by fists and against a concrete surface, and who was aware throughout the duration of the beating that he had a gun on him that could be grabbed easily by his assailant, combined with zero knowledge about what that man would do with the gun or his fists or his advantageous positioning, would naturally have EVERY reason to fear for his life.

      Your statement was preposterous unless you meant "not the slightest" literally. The facts above represent overwhelming "credible evidence" that GZ had reason to fear for his life. Namely the injuries and ongoing events combined with the lack of knowledge that Martin was what his defenders obviously believe he was (a pleasant young man who would beat a man but knew just how short to stop before killing him, and was in the moment of his assault deeply morally averse to doing so).

      Your assertion is not reasonable or reasoned.

    13. The problem with your argument is pronominal. There's quite a bit of second person (referring to me) and far too much first person (referring to yourself). I count 11 usages of "you" in your comment, including consideration of my thinking, my eagerness, my logic, and so on. But I wasn't a party to the trial, so these references tell us nothing. Your own thrilling narrative about the fight is likewise of little import. It's a story you've imagined, about someone aware of a gun throughout "the duration" of beating. But that's you, not Z, who says he decided to shoot when he felt M reach for his gun.

      What's necessary is sticking to the third person: what the various hes and shes presented at trial. This is not a natural way of thinking, and as is evident, you're not very good at it.

      We put credibility on a scale. The gold standard is evidence that is corroborated, nonconclusory direct testimony by disinterested, reliable parties. Which is to say, testimony given under oath about factual matters , subjected to cross-examination and confirmed by other evidence. An example would be the neighbor who testified to the fight. He described what he saw, and what he saw matched what M and Z were wearing. He testified under oath, had to answer questions from the defense, and as far as we k now, had no connection to the parties in question, no reason to lie, and no history of doing so.

      At the other end of the scale is the testimony of the woman having the cell-phone conversation with M. Every action she describes is second-hand, she was M's friend, and she'd lied to the police about tangential matters.

      So let's examine the evidence that Z had a reason to fear for his life. Note that this is different from asking whether he might have had a reason to fear for his life or whether he actually feared for his life or whether a reasonable person would have feared for his life. Most particularly this differs from the question the jury had to answer: Can we conclude beyond a reasonable doubt that Z did not fear for his life.

      The problem is that the evidence for the question we're considering is thin on the ground. Z didn't testify, so there's not even testimony under oath that he acted in self-defense. All we have is hearsay, namely the taped and written evidence that the prosecution presented of what Zimmerman said. This evidence was not given under oath, cannot be cross-examined, and belongs to a very interested party. The wounds Z sustained do not corroborate an impending struggle to his death.

      My assertion is reasoned under the law. As I said, this is perhaps not a natural or easy way of thinking, and you may object that it's too legalistic. But it's a legal question, and one that must be answered with the constraints the law places on what we know and how we know it.

  5. For the uninformed, the Dunn case is one which Somerby has not previously mentioned. Apparently the journalism was not bad enough for him to weigh in earlier on this killing in Florida, in which a white guy in a car with a gun murdered a black teenager doing nothing wrong.

    Bob cares about black kids. That is why he waited until a reporter did a bad job and a professor said something academic to write anything.

    1. And what conclusion does "care about black kids" Somerby reach?

      Of course, this one: "Kristof wants the professors to help out more. We used to say things like that too. Then, we read some work at the new Salon. We began reforming our view."

      Yep, just another excuse for bashing a professor for using a big word, and Salon for publishing it.

  6. "Miles also says that she thinks Dunn was “guilty of murder, but not guilty as charged.” We have no idea what that means."

    That is a remarkably obtuse statement. Few people would actually brag about being so ill informed and so unable to read plain English. The statement clearly says "he was charged with first degree" and continues to say that "I believe he was guilty of second degree." What part of that is hard to understand?

    1. Yes, I agree. Off all the strange things this sad woman said during her 15 minutes of fame, that was perhaps the most easily understood.

      But that's never stopped Bob before from feigning lack of comprehension then blaming the interviewer for something the interviewee said.

    2. MILES: I think he's guilty of second degree. I was convinced. I was honestly convinced that he was in self-defense until he chased the car down and started shooting it more.
      These 2 sentences are self-contradictory and remarkably idiotic for someone who sat through the entire trial and nearly 30 hours of deliberations.

      They convicted the guy of 3 counts of attempted murder, but the killing shots that actually ended the life of Jordan Davis, those were in self-defense. That's what the jury said.
      2nd degree murder was a lessor included charge and the jury was perfectly free to convict Dunn of that charge, if that is what this juror believed. Why didn't they?

    3. Actually, no. The jury hung on the murder charges. They didn't acquit. They did agree and convict on the three counts of attempted murder, because there was no way that could be self defense, no matter how much Florida law stretches the definition.