From: "Rodney Coates" To: "Racial-Religious-EthnoNationalist Violence Studies" Date: Tue, 24 Sep 96 14:49:09 +0 Reply-To: "Rodney Coates" Subject: Update on Mississippi Murder trial of 15 yr.old boy: fyi --fwd Date: Tue, 24 Sep 1996 13:55:51 -0400 From: CharliLJ@aol.com To: zambia-list@msstate.edu ctepa@chemeng.uct.ac.za (tepa) Subject: Re: African immigrant on trial in USA coatesrd@casmail.muohio.edu (Rodney Coates) recently forwarded a report: RE: "Azi Kambule: A South African 10th Grader Facing the Death Penalty in Mississippi" Azi is apprarently a 15 year-old South African Black who is charged as an accomplice to capital murder. <> The prosecution's theory, if the above facts are correct, shall have to be first degree murder by vicarious liability. They shall have to prove that Azi "murdered" McGill because, had Berry not done so, Azi, clearly and beyond a reasonable doubt, would have done so himself; moreover, that he did take positive steps to directly assist Berry in committing the murder (e.g., restraining the victim in the car, providing Berry a gun, etc.). The standard of proof shall require the prosecution to show positive actions and/or averments by Azi of his intent to kill McGill. The only other witness being Berry, it is quite unlikely that the prosecution shall prevail in establishing such a proof. If the jury returns a guilty verdict and a death penalty without meeting the required standard of proof, the verdict should be easily turned over on appeal. Indeed, Azi's best defense is that he didn't actively participate in the murder or bear any malice towards McGill at all. Rather, that he himself was victimized by having been kidnapped by Berry! After all, Azi couldn't drive the car and, at that point that he understood what Berry's intent was (if he ever did), it was too late for him to get away. Using a vehicle to transport another against their will is kidnapping per se. Azi would only have to testify under oath that he did not go along with the ride willingly and that he took no actions in furtherance of Berry's plan. It will be very difficult for the prosecution to overcome this theory, if there are no facts other than as presented above. Again, if the jury returns a guilty verdict and a death penalty without meeting the required standard of proof, the verdict should be easily turned over on appeal. The case was moved back into Madison County, doubtlessly, because that's where the crime occurred. Such is American law. If, during jury selection, it becomes clear that all the prospective jurors are white and racially biased, the defense shall still have the opportunity to declare that a fair trial cannot be had in Madison County. In that event, the case can be moved again. <>>> The Eighth Amendment to the US Constitution prohibits the application of cruel and unusual punishment in sentencing criminals. Flogging was long ago held to be cruel and unusual. If Gov. Fordice succeeds in getting such a measure through the Mississippi State Legislature, it would be immediately challenged in Federal District Court in Jackson, MS, and immediately held unconstitutional and void. Similarly, in more recent years, the federal bench has declared that the ability of inmates to read newspapers and watch television is fundamental to their exercise of their First Amendment right to free speech which cannot be abridged, and that attempting to do so also violates the Eighth Amendment, being cruel and unusual. If the current Mississippi law completely prohibits inmates from access to newspapers and television, it shall be overturned. Complete denial of access to spiritual guidance and to telephones is also a violation of the First and Eightht Amendements which shall not stand. <<66% of those persons sentenced to death as children have been from racial minorities....Given these racially biased statistics, it is not surprising that Azi has been chosen for the death penalty.>> The US Supreme Court recently decided that racial bias CAN indeed be alleged as an affirmative defense against almost anything which the prosecution would like to bring on, BUT, the defense shall have to prove this, more than merely allege it. The proof shall have to be founded upon NO UNCERTAIN evidence that the prosecution treats whites (or other races) preferentially: In other words, that the prosecution, knowing of numerous crimes committed by whites, fails to prosecute them or, in prosecuting them, preferentially pursues such prosecutions less vigorously and towards less rigorous punishments, in comparison with the prosecution's pursuit of blacks and other nonwhite races reasonably suspected of having committed crimes. Unfortunately, such statistics would be very hard to develop and are not readily available in any jurisdiction in the US at this moment. However, that shall probably not remain so for very long. The US Supreme Court decided expressly that the mere fact that a disproportionately large number of blacks are accused, tried and convicted of various crimes is not, in and of itself, proof of racial bias in the justice system. Indeed, it may be more generally proof of racial bias in the broader society, and not the justice system: Generalized bias may lead blacks to suffer economic deprivation disproportionately often, thus, causing them greater personal stress, more frequently dysfunctional familiy life, and a resultingly greater tendency to grow up with criminal personalities and to commit crime. I do believe that if one adjusts the rates of crime in any given neighborhood in the USA for the relevant and prevailing level of economic deprivation, the association of crime with racial identity becomes very weak or dissolves altogether! in other words, it's not being black, per se, but being poor and growing up under abusive parents in grinding poverty (yes, we have that too!) which spurs one to commit crime. Of course, all of the above is said only by way of contrast with regard to Zambia. It raises many questions for discussion on this list about how the police would operate in Zambia under similar circumstances, what rights the accused and, resp., inmates may enjoy, what the relevant standards of proof are, what punishments are considered constitutionally available, how the accused may prepare a defense to the charge of murder and on what grounds, etc. Mfumu Hitodakedes' *************** Mfumu, Thanks for your astute and prescient comments on this subject. In fact a church minister somewhere in missisippi has taken it upon himself to follow the case. I have unfeign delight in the nature and structure of your posts . Keep it up. Tepa umoja Only when lions have historians will hunters cease being heroes. African Proverb Without struggle there is no progress. Frederick Douglass The most potent weapon of the oppressor is the mind of the oppressed. Steven Biko yours in the struggle Rodney D. Coates Director of Black World Studies Associate Professor of Sociology Miami University Oxford, Ohio 45056 513 529-1235 email: coatesrd@casmail.muohio.edu