Last week, I sketched an evidentiary hearing for a woman named Cecily McMillan.
Two years ago, I'd seen Cecily convulse in handcuffs as the police shut down an Occupy Wall Street protest. Cecily was an organizer. A plain-clothes cop had grabbed her breast from behind, hard enough to leave a bruise shaped like his handprint. Instinctively, she elbowed him. Most women would do the same if a man grabbed them from behind.
The cops beat Cecily till they broke her ribs. As she had a seizure on the pavement, the crowd screamed for the police to call 911. The police just watched.
Two years later, Cecily is charged with assaulting an officer. She faces seven years in prison.
In that fake-wood courtroom in lower Manhattan, the judge told Cecily's lawyer the fact that her arresting officer had beaten up other people was not relevant to her case. His records would be sealed. Afterward, addressing her supporters, Cecily tried to hide the tremor in her voice.
Courtrooms are a violent theater. The violence happens off-scene: in Rikers Island where a homeless man recently baked to death; in the shackles and beatings and the years far from everything you love. But the courtroom itself is the performative space, the stage where the best story triumphs, and where all parties, except (usually) the defendant, are just playing parts.
In the past three years, I've sketched many courtrooms. I sat in Fort Meade drawing the back of Chelsea Manning's cropped blonde hair. In Guantánamo Bay, I drew Khalid Sheikh Mohammed through layers of bulletproof glass. I've been to hacker trials and misdemeanor court and the sentencings of friends—though at my lone disorderly conduct hearing, I got an ACD (which is short for adjournment in contemplation of dismissal) so fast I couldn't even reach for my sketchpad.
The trials I've drawn have mostly been politically motivated. The defendants, however victimized, were also heroes of their stories. They read statements they agonized over, knowing that it might be a long time before they could speak again. The courts tried to stamp out all that was special, to make them fit into what activist Mariame Kaba of Project NIA calls the “widget factory” that is the criminal justice system. Their supporters tried to tear through the ritual, to remind them they were important and loved.
At Chelsea Manning's trial, her supporters wore shirts reading “Truth.” Chelsea was not allowed to turn around to see.
But the average defendant isn't a famous whistleblower. He's a person of color charged with a drug crime. Most trials resemble not grand dramas but factory farms. The raw material is a person. The product is a prisoner. Trials are deliberately dull. They move glacially, on state time rather than human time. If you hire your own lawyers—a necessity to have a chance of winning—you'll blow through your life savings. As the cop cliché goes, “You can beat the rap, but you can't beat the ride.”
Yet America loves her trials. Courtrooms are secular churches. Bow your head, hush your voice. With enough Law and Order episodes, the criminal justice system gets mixed up with justice. Square-jawed prosecutors will punish the wicked. The innocent will be redeemed.
Real trials like acquitted baby killer Casey Anthony's are layered over fictional ones. They're outlets for collective sadism. Look at the murderess. Are we not pure?
The pop culture courtroom is familiar to all Americans. It is both grand and comforting, a pillar of our democracy. So we ignore the reality that we imprison more of our population than any country in the world, in horrific conditions, half of them for drugs, disproportionately the poor and brown.
If “getting your day in court” means justice, why should you complain if you're locked in a box when that day is done?
No one who's spent time in courts believes trials are about truth.
A former prosecutor I spoke to told me he'd been trained to conduct a trial like a performance. It was all about keeping the audience engaged. He would point at the defendant, stabbing the air with his finger, to show the jury that they too should point at him with a guilty verdict. The prosecutor told me that there was no feeling worse than hearing “not guilty.” It was 12 average Americans saying he sucked at his job.
Defense attorneys I spoke with agreed. It's all about the story—something that public defenders, who get paid nil and don't have the power of the state behind them, are usually too overburdened to craft.
At sentencing, performance and pragmatism coalesce into poison. At the sentencing hearing, the prosecutor will always paint the defendant as a threat to all good citizens snug in their beds. To keep them safe, the defendant must get as many years as possible. But weeks before trial began, that same prosecutor will usually have offered the defendant a plea deal that was a fraction of that sentence.
Because the entire system would implode if everyone demanded a trial, prosecutors push plea bargains like restaurants hawking early bird specials. But instead of money, they're haggling over life. If you're too poor for a lawyer or have already spent months in jail because you can't make bail, plea bargains can be irresistible. They account for 95 percent of felony convictions.
Marissa Alexander, a PhD and mom who fired a warning shot at the ceiling to stop her husband from beating her, was offered three years as a plea deal for aggravated assault with a deadly weapon. She refused, knowing herself innocent. The judge sentenced her to 20 years. Now, she's appealing. If she loses, the prosecutor wants to lock her up for 60.
This is a “trial tax” you pay if you annoy the courts by insisting you are innocent.
At trial, you better fit a casting agent's idea of “Not Guilty.” Cecily McMillan is small, white, and lovely in her blowout and blazer. White America seldom imagines that little white girls, like Cecily and me, will punch cops. We wear the costume of innocence. It’s not surefire, but it helps.
The poor, the brown, the trans—to juries, they're guilty unless proven otherwise. Innocence is the absence of guilt. It is near impossible to prove a negative.
If you're too poor to afford bail, you arrive in court in chains. If you have no family to bring you a suit, you wear your prison jumpsuit. During her murder trial, Angela Davis's team fought for her to get bail. They wanted her to go into the courtroom each day in her own clothes, looking like a woman who was and would be free.
When I write about courts, there's pressure to add of course. Of course some defendants are guilty. Of course there are rapists and murderers. Of course judges and prosecutors see themselves as good people doing a tough job, trying to get through the day. Yet this of course excuses too much. It excuses a system drenched with racism, corruption, and violence. It excuses a contest where he with the most cash wins. Where instead of truth, justice or mercy, lawyers must craft fables—tales rigged in favor of those who already have the most.
As I sat at Cecily's trial, my friends were in Philly, attending hacker Andrew “weev” Auernheimer's appeal. Auernheimer himself was in solitary, locked with his thoughts in a six-foot-by-11-foot box.
Last March, I attended Auernheimer's sentencing. Hacker Jaime Cochran had taken the train 20 hours from Chicago to support him. She was thrown out of the courtroom for touching her phone. Jaime stood on the other side of the door. Every time it opened, she screamed “Dongs!”
Afterwards, some criticized Jaime for not respecting the court. But from where I sat, it felt like the most human thing anyone could have done.
The court was locking up Jaime's friend. She couldn't stop that. At least she could show that she wasn't buying their show. Jaime told me later that she refused to be a “docile spectator” in her friend's life.
After one trial, the lawyers move on to another. Judges hear the next case. But for most defendants, courtrooms are preludes to cages. After the theater of justice, reality is theirs alone.
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