Two Systems of Justice

In the Disney movie, Mary Poppins, there are many great earwigs. An earwig-you know-originating from the German word "ohrwurm" or earworm. It's one of those songs that you can't stop singing in your head for the rest of the day? Indubitably, there is one that supersedes all others in the movie:

You're welcome. You'll be singing that in your head all day. There's a song that will obliterate it, but I don't recommend it. (You've been warned.)

The underlying premise of the song is that when you can't think of what to say, supercalifragilisticexpialidocious is the word you can use. Gratefully, when interviewed or otherwise, I haven't had to pull it out of my back pocket, but, don't think for a moment that it isn't there.

I am rarely at a loss for words - my husband, who I have been sequestered with during COVID (longest jury sequestration ever! Hotel California, indeed!) would say I have too many words. I espouse the view that there are a certain number of words that one must say each day - this requirement is different for everyone. Once you have said your requisite number of words, you just simply stop. I think it's happened once, but I digress. Anyway, my required word count is high and there is certainly no word shortage this week. Between the Olympics Skating Cluster and the Kimberly Potter sentencing, these opportunities provide more than enough for us to chew on in this newsletter.

If you follow me in someway, you know that this past Thursday, on Deep Dive with Dr. Tracy, we devoted the show to anti-doping in athletics, framing it around the ROC (Russian Olympic Committee) skater, Kamila Valieva. If you haven't seen the episode, check it out here. We heard from Dr. Martha Gulati, President-Elect of the American Society for Preventative Cardiology and Attorney Lindsay Brandon, with the Law Offices of Howard L. Jacobs. If you know nothing or next to nothing about how the anti-doping system works, it is a must watch (or listen, as the show is also available as a podcast anywhere you find your favorite podcast). I could have asked Attorney Brandon a hundred more questions.

If you missed all the brouhaha, good for you. Let me catch you up. Valieva tested positive for a banned heart medication which has been shown, however marginally, to improve oxygen delivery increasing athletic performance. The Court of Arbitration for Sport (COS) allowed the skater to compete, claiming that she would be irreparably harmed if she could not skate. In return, the International Olympic Committee (IOC) declined to hold a medals ceremony for the team event (where the United States has tentatively earned a silver medal, behind ROC); and if Valieva earned a medal in the individual competition, there would be no medals ceremony for the individual event either, meaning that the other medal winners in both events would go home empty-handed, but for a Bing Dwen Dwen, maybe. Therefore, the decision to place the interests of Valieva over the Olympic competitors would deprive them of their One Moment in Time (cue Whitney Houston). In fact, much later, a group of Olympic skaters petitioned the COS to hold a medal ceremony before they left Bejing, but the COS dismissed their petition.

Valieva seemed to be unaffected by the outrage, but everyone has their limits. Though after the short-program she was in first place, her free skate was four minutes of sheer catastrophe. Valieva had the worst performance of her career (not a good time for one to have a bad day), and she was visibly distraught, having fallen multiple times.

There were calls for change. Quelle surprise! Going into the competition with the taint of scandal weighing on Valieva, the loudest members of the Court of Public Opinion were angry that Valieva could skate at all. Indeed, NBC commentators, Tara Lipinski and Johnny Weir, normally Chatty Cathys, were uncharacteristically mute during Valieva's short program. Former skaters tweeted agog that a purported anti-doping violator could skate, considering what it seems is a mostly strict liability treatment of the infraction.

During the free skate, when Valieva disintegrated on the ice and then became a puddle of tears in the appropriately named Kiss and Cry area, there was anger that the skater was subjected to this type of pressure. Yes, my Dear Reader, that is a case of whiplash you are feeling.

The common thread in both batches of criticism was Valieva's age. Prior to her performance, those furious that a presumptively doping skater could skate at the most important and most prestigious of athletic events for the sport took issue with the COS reference to her young age as a factor. Then, like an elite skater shifts their weight with precision, using an alternate edge of the blade, there was a furor over how anyone would allow a 15-year-old to endure the type of pressure that she was carrying to where the world saw a clearly traumatized child crying on the World's stage over her dismal performance. The answer to both problems, it was suggested separately, was to raise the age of eligibility of Olympic figuring skating competitors.

Here's my brief lecture on change. It took me three years of year round coursework, conducting a dissertation study, and writing my tail off for me share these words with you:

People who suggest change rarely do so based on evidence, and certainly without consideration of the full panoply of ramifications a change would elicit. People focus on the shiny object of distraction like kittens batting a yarn balls or the stick with all the doodads that our family cat (read: my husband's cat) ignores when I attempt to entice him with it (in theory, that might make him a good decision-maker, or maybe he is a one person cat).

Change the age, huh?

One needs to understand history. Kamila Valieva is 15 years old, having been born on April 26, 2006. So, she was technically 15 years and 297 days old on the day of the free skate. No. Really. The days are apparently part of historical statistics. Throughout Olympics history, young skaters are not an aberration. There is a searchable listing available on Wikipedia, here, and you see that in every event and among both male and female competitors, there have been skaters in their early teens. In fact, Tara Lipinksi, who skated her way to a gold medal and was a commentator for this year's Olympics, was younger than Valieva when Lipinksi won.

Age of the skater competing doesn't seem to be variable that is important. It is what that age means in these situations. Valieva's age made her, under the current anti-doping code, a Protected Person. As a Protected Person, an athlete under 16-years-old, Valieva would be subjected to a lesser penalty than a skater who was, get this, 68 days older than her. Being a protected person does subject those around her to investigation, as well. So there is a benefit. But the COS reasoned, it seems, that because the penalty would be less, that depriving Valieva the ability to compete would be of greater harm. It didn't consider the stress put on her during that time period, the relative unfairness to other skaters who had competed presumptively "clean", or the logistical ramifications of a medals ceremony and either changing out medals awarded or delaying the ultimate results. Codified in writing in that Code is two systems of justice.

If folks in the skating world are paying attention, that's your problem that needs to be solved. If skating clean is the goal, then the World Anti-Doping Agency needs to revise their codes to hold all skaters skating at the same event accountable regardless of age, taking into consideration all attendant factors, including the impact on unrepresented parties in interest. A second problem is your mission, and like every organization, you need to review it regularly. What does your organization value, height and revolutions or something else? Where age becomes a factor is that small stature, lighter weight, without broad hips produced by puberty and age, a young skater can jump higher and spin faster. <There are excellent discussions of the impact of eating disorders, but I am not addressing the issue here, only acknowledging the pervasive impact. >

While we are on two systems of justice, it is a good time to segue to the Kimberly Potter sentencing hearing. Potter, a former Minnesota Police Officer, killed 20-year-old Daunte Wright, a young Black man when instead of grabbing her taser, she pulled her service weapon and shot him at point blank range, killing him.

A jury deliberated over four days and convicted Potter on first degree manslaughter predicated on reckless use or handling of a firearm and the lesser-included offense of second degree manslaughter. The potential sentence possible under Minnesota law was up to 15 years. Potter would only be sentenced for the most serious charge, first degree manslaughter. The sentencing guidelines suggested six to eight and one-half years. Best guesses by those who practice in this area was that she would receive seven years.

The Judge, Judge Regina Chu, an Asian American judge, sentenced Potter below the state guidelines, basing her decision on mistake. Instead of sentencing Potter for 7 years, Potter was sentenced to 2 years with credit for time served, meaning that Potter would serve approximately 18 months for killing Daunte Wright.

The judge's sentence nullified the jury's verdict.

First degree manslaughter occurs when a person's reckless conduct creates an unreasonable risk of death of a human being and causes the death of a human being. Knowing the risk, the person engaged in the conduct, anyway. Second degree manslaughter occurs when a person's negligent conduct creates an unreasonable risk of death of a human being and causes the death of a human being. Negligent conduct is akin to a mistake, or a breach of duty of care. Both charges were brought by the prosecutors and if the jury found first degree manslaughter, they would also find second degree manslaughter.

Understandably, the Wright family is livid. I would be, too. But on different grounds. While race can never be separated from consideration, not that "a white woman's tears" mean more; it was that a former law enforcement officer's tears meant more than Daunte Wright's life.

“This is one of the saddest cases I’ve had on my 20 years on the bench," said Chu, who also said she received “hundreds and hundreds” of letters supporting Potter. "On the one hand, a young man was killed and on the other, a respected 26-year veteran police officer made a tragic error by pulling her handgun instead of her Taser.”        

Judge Chu devoted more adjectives, more words, to Potter than she did to Daunte Wright. Daunte Wright wasn't just a "young man". He was a young Black man who was a son and a father who deserved all the due process our system of justice is, on paper at least, supposed to provide and that does not include being slaughtered at a traffic stop for an expired registration tab and an air freshener hanging from the rear-view mirror. Rather than using the Potter's veteran status, her years of experience, that number in more years than Mr. Wright lived, as an aggravating factor that no doubt the jury considered, the judge used it as a mitigating factor.

It is almost certain that Judge Chu is unaware of her implicit bias toward law enforcement. Her ruling exemplified that even if charges are brought, even if a jury acts with courage to hold law enforcement accountable for conduct, implicit and unconscious bias in its many forms presses down through the mind of a judge. It pushes with the force of inertia created by power and privilege, squeezing out the opportunity for justice for a family that will forever be without Mr. Daunte Wright, age 20, a young Black man, son of Katie Wright, his white mother and his Black Father, Arbuey Wright. Mr. Daunte Wright, moved from Chicago to Minnesota, and was working to support his 2-year-old son, Daunte Wright, Jr. Mr. Wright had plans and a hope for the future having enrolled in vocational school.

Meanwhile, Potter, already resigned and retired from the police force, having done so after killing Mr. Wright, before being charged and convicted, will be fixin' to go home to her family and friends in 18 months and collect her pension, unaffected by her criminal conviction. Lucky for her. She might consider donating that for the care of Daunte Wright, Jr.

Mr. Wright deserved the same system of justice. He deserved it before his life was snuffed out and he deserved it after he was senselessly killed by a police officer who admitted on camera still rolling that she had meant to grab her taser, but fired her service weapon, and using her privilege as a law enforcement officer, she squeezed every ounce of due process she could grab, still putting the Wright family through the pain and agony of a public trial, thinking that a jury wouldn't convict her.

What I have to say is absolutely not supercalifragilisticexpialidocious. But those thoughts wouldn't be appropriate for this forum.

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