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I was not going to allow the system to...take my identity away from me.
January 21, 2014 9:58 AM   Subscribe

When CeCe McDonald was incarcerated in a mens' prison after defending herself from a racist, transphobic attack, she drew support not only through her misfortune but also through her insightful, valuable commentary on subjects ranging from how men react to having their masculinity questioned by "outside speculators" and violence against women to pansexuality on Sex and The City.

Now released from prison after 19 months,, the 25 year old African American transgender activist isn't content just to finally listen to the new Beyonce album. She appeared on Melissa-Harris Perry discussing her experience with the prison-industrial complex, and will be the subject of a new documentary by Orange is the New Black star Laverne Cox (previously).

Please consider reviewing Trans* 101 before participating in this thread.
posted by Juliet Banana (56 comments total) 53 users marked this as a favorite

 
I still struggle to understand a country in which CeCe McDonald is imprisoned, and George Zimmerman walks free.

(Yes, the fact that it's different states we're talking about means you can't really compare the two, but damn. Minnesota legislation allows "reasonable use of force" in resisting people trespassing on your property fer chrissakes.)
posted by Dysk at 10:13 AM on January 21 [17 favorites]


Laverne Cox also gave her a lift from prison, which is possibly the only part of this story that is adorable.

Thanks for doing this FPP!
posted by dinty_moore at 10:14 AM on January 21 [2 favorites]


The stabbing weapon was a pair of sewing scissors and the fact that she was armed somehow was used against her. I'm glad to know that I'm actually thinking about murdering someone whenever I have my knitting bag around.

I know, I know, this is not news to anyone who has heard of this incident before, but it still gets to me.
posted by dinty_moore at 10:21 AM on January 21 [6 favorites]


dinty_moore: "The stabbing weapon was a pair of sewing scissors and the fact that she was armed somehow was used against her. I'm glad to know that I'm actually thinking about murdering someone whenever I have my knitting bag around."

Moreover, as I understand it, she had approached the cop hoping for help.
posted by hoyland at 10:26 AM on January 21


I'm so glad finally to see CeCe free! Just the idea of spending 19 months in a mens' prison is horrifying to me--cruel and unusual, even.

I'm also super glad to see, again, Melissa Harris-Perry continuing her sterling ally work.
posted by ArmyOfKittens at 10:29 AM on January 21 [11 favorites]


I'm very consistently outspoken about deadly force, that fear of weaponless violence is not a reasonable justification for use of a deadly weapon and not the basis for a valid self-defense argument when someone is killed with that weapon. That's how I strongly feel about the Trayvon Martin case, and I believe it in this case, too.

But that's when this is examined quite abstractly. Looking at this in context, it's extremely hard to justify McDonald's prosecution, and especially so when contrasted against other cases, such as Zimmerman's.

In that case, there was never any strong support for the defense's claim that Trayvon initially attacked Zimmerman, and yet this was the basis for the initial reluctance to charge him and the decision to find him not guilty.

In contrast, absolutely no one disputes that McDonald was both attacked with a deadly weapon (a beer bottle to her face) by Molly Flaherty, without any physical provocation by McDonald. Furthermore, McDonald was badly injured (her cheek was badly cut) and then attempted to leave the scene. Whereupon she was chased after by Dean Schmitz and literally was backed into a wall. At that point she stabbed Schmitz.

It is absolutely impossible to believe that had McDonald not been a transgendered woman, and had she not been black and her attackers white, that she would have been prosecuted after having been attacked and injured and then chased down by another attacker and forced to defend herself.

Did she use a deadly weapon when Schmitz was unarmed? Yes. Did she stab him multiple times, resulting in his death? Yes.

But I feel certain that I could find any number of cases where a woman was attacked and injured, tried to flee, and then chased down and cornered, and who then defended herself using deadly force with a weapon against an unarmed attacker and was not charged with a crime but, rather, was understood to have been defending herself while reasonably believing herself to be in deadly peril.

Given my beliefs about the use of a weapon of deadly force against an unarmed attacker, I'd nevertheless support McDonald's prosecution if we lived in a world where all such cases were prosecuted.

But we don't live in that world. We live in a world where in the US a white man can shoot an unarmed black man with impunity and where a black trans woman defending herself from a vicious attack is sentenced to prison. The implicit message in this disparity is clear: white people may attack or even murder black men and black trans women as they wish, without fear of official reprisal.
posted by Ivan Fyodorovich at 10:30 AM on January 21 [28 favorites]


I watched CeCe and her advocates and Laverne Cox on MHP Sunday, right after reading the Dr. V links. What a fantastic piece -- please watch. As a lawyer, of course I am appalled whenever trans women are placed in men's prisons. But CeCe directed her advocates not to focus on this issue, but to instead focus on the violence of incarceration generally. That is some brave righteous justice work. I am blown away by CeCe's leadership and vision.
posted by ClaudiaCenter at 10:39 AM on January 21 [14 favorites]


(Just FYI, the journalist's name is Melissa Harris-Perry, not Melissa-Harris Perry)
posted by roomthreeseventeen at 10:45 AM on January 21 [1 favorite]


I hope that DA lives long enough to see himself on the wrong side of history.
posted by R. Schlock at 10:47 AM on January 21


It was particularly angering because the DA had just that year pardoned two people who had killed someone to save themselves during an attack, so there was even immediate legal precedent to pardon CeCe. But of course those people were white (and, I assume, cis). It was just so transparently unjust (it happened basically in the parking lot of my grocery store and I was very very peripherally involved with the support committee, providing a little bit of secretarial help). If you are familiar with the location and the bar, it is horribly clear how all this happened - it's a rather gross little dive bar, there's a culture of white racist resentment among people in this neighborhood and a history of racist violence (particularly against native people) and police harassment.

CeCe McDonald has just been a shining star through all of this horror.
posted by Frowner at 10:52 AM on January 21 [9 favorites]


Thanks for reposting this. It is important.
posted by byanyothername at 11:01 AM on January 21 [2 favorites]


Did CeCe take a plea? I don't understand how this played out.
posted by dabitch at 11:17 AM on January 21


In contrast, absolutely no one disputes that McDonald was both attacked with a deadly weapon (a beer bottle to her face) by Molly Flaherty, without any physical provocation by McDonald. Furthermore, McDonald was badly injured (her cheek was badly cut) and then attempted to leave the scene. Whereupon she was chased after by Dean Schmitz and literally was backed into a wall. At that point she stabbed Schmitz.

The part about McDonald being backed into a wall is new to me. Is there a specific source for that? The articles I've read place the confrontation in the street.

Did CeCe take a plea? I don't understand how this played out.

She pled down to 2nd degree manslaughter.
…in taking it, McDonald would have to throw out her legal claim of self-defense and confess that she created an unreasonable risk of injury or death by pointing the scissors toward Schmitz, who was unarmed.
posted by zamboni at 11:24 AM on January 21 [1 favorite]


She served two-thirds of that sentence in prison, a standard procedure in Minnesota, and will serve the rest on parole.
Looks like she's only out on parole too. (Which is still bullshit.)
posted by yeoz at 11:26 AM on January 21 [1 favorite]


"The part about McDonald being backed into a wall is new to me. Is there a specific source for that?"

Oh, you're right: I misread part of the plea bargain. I'd thought they were in an intersection, too, but I misread "because your back was to the bar, correct?" as "wall". But they were just clarifying that she had, when she tried to leave, moved away from the bar and thus, Schmitz.

But the point is that she was leaving and he went after her, coming up behind her, and she had already been badly injured. It's hard not to see that as Schmitz being egregiously threatening and McDonald as understandably provoked to defend herself.
posted by Ivan Fyodorovich at 11:40 AM on January 21


The thing I thought about during all this was how if you are a trans woman, particularly a trans woman of color, and you're in an altercation, you really could die, someone really could go from harassing you to killing you pretty easily. People really do attack trans women without provocation and with incredible violence, and people really do neglect the safety of trans women. There was a woman murdered here that winter after this all happened, basically because her landlord had ignored her pleas to fix her door and window. IIRC, the judge did not let any expert witnesses testify about violence against trans women. I naturally have no idea what CeCe was thinking, but what I was thinking is how I would have felt and acted if I had really, really plausibly known that women in my situation were routinely very badly injured or killed.

I actually am not generally physically afraid even when I've been harassed or confronted, because in nearly every situation my whiteness and class status sorta-kinda protect me. (Also although I think I get some extra hassle for being gender nonconforming, because I am a masculine spectrum person, the hassle I get feels less likely to turn into violence.) I tend to expect that if someone harasses me it may be awful and stressful and even frightening, but I have never been in fear of serious injury or death.

I just think about how it might feel to be in a situation where as far as you knew you were fighting for your life.

I have also once been followed by someone who had hit me, punched me in the arm out of the blue - a schizophrenic guy, it was a weird situation, it wasn't his fault but his illness unfortunately did manifest itself in violence and I was not the only person to encounter him - and just the fact of this guy following me was so fucking scary.
posted by Frowner at 11:50 AM on January 21 [17 favorites]


I have been harassed on the street many many times since starting transition, and a few times it has escalated to violence. It's always been groups of teenage/early twenties boys, starting with heckling, moving to shoving, with the atmosphere really getting increasingly hostile increasingly quickly. Each time I have been lucky enough to get away with very quickly switching from head-down deference to shoving someone over or lamping them (in order to make an escape route) and legging it in the resulting confusion. Most of the time, they've pretty clearly read me as trans, but on one or two occasions, there was nothing to suggest that that was the case. Maybe they had, but just as possible that I was getting hassled or attacked simply for being a woman.

Any which way, it's a fucking terrifying situation to be in, and I stand absolutely behind the (minimal) violence I have inflicted in those situations. In McDonald's situation, I would've acted similarly to her, and that the justice system let her down so completely, because of the colour of her skin, because of her being trans, is just a fucking travesty.
posted by Dysk at 12:40 PM on January 21 [16 favorites]


Given my beliefs about the use of a weapon of deadly force against an unarmed attacker,

You don't need a weapon to kill someone, especially if that person isn't as physically strong as you are. I'm sure that you know this, which is why it's strange to me that your line is "attacker unarmed" versus "attacker armed," rather than "life not in danger" versus "life in danger."

It's certainly easier to empirically demonstrate that someone was threatening armed violence than that they were going to use punches, kicks, or strangulation to murder you--is that why?

To be honest, as a fairly small woman, it seems kind of ... I guess, unfair? ... to not consider it justified to use a weapon against an unarmed person who is threatening your life.
posted by Kutsuwamushi at 1:25 PM on January 21 [7 favorites]


The stabbing weapon was a pair of sewing scissors

fear of weaponless violence is not a reasonable justification for use of a deadly weapon

If a pair of sewing scissors can be considered a "deadly weapon", wouldn't the glass she was slashed in the face with count as a deadly weapon as well? It may not have killed anyone, but it could have.

I don't know the details of the fight or why it ended up being fatal, but it seems like it started in an attempt to defend herself, with anything she could get her hands on - it's not as though someone slapped her and in return she stabbed them with her trusty switchblade.
posted by randomnity at 1:49 PM on January 21 [1 favorite]


erm, I skimmed too fast and missed the part where you pointed that out already. Sorry!
posted by randomnity at 2:08 PM on January 21


"If a pair of sewing scissors can be considered a 'deadly weapon', wouldn't the glass she was slashed in the face with count as a deadly weapon as well? It may not have killed anyone, but it could have."

It is considered a deadly weapon legally, and I characterized it as such in my comment.

"It's certainly easier to empirically demonstrate that someone was threatening armed violence than that they were going to use punches, kicks, or strangulation to murder you--is that why?"

Partly. I think the deadly weapon legal standard is justified because while it is certainly possible to kill someone without a weapon, a weapon makes it much easier. And then there's the consideration you mention, as well as it simply being the case that weaponless assaults are quite common and have a huge range of variance in terms of severity of harm, while assaults with a weapon are an obvious line of demarcation contrasted against those.

"To be honest, as a fairly small woman, it seems kind of ... I guess, unfair? ... to not consider it justified to use a weapon against an unarmed person who is threatening your life."

I'm a small man. I'm extremely aware of both that fact that it's possible to kill someone barehanded — it's much easier to kill someone, generally, than most people think — and that when there is a large disparity in mass, the small defender is necessarily in a smaller range of possible responses, perversely pushing them more strongly toward deadly force.

So I agree that it's unfair.

As discussed, in practice it's usually the case that a woman, especially, will be given the benefit of the doubt in these situations, up to and including when she uses a firearm to defend herself against an unarmed attacker. It's arguable that there's too much deference given to women about this. But we see that there's little or no deference for trans women.

This really shouldn't be any sort of categorical rule. I prefer there to be a continuum where someone using a firearm against an unarmed person is on the extreme end of the continuum whereby the burden of proof is on them to demonstrate that they were justified to use deadly force with a firearm in self-defense. Whether under questioning by the police, or at trial, I think the presumption should be that the use of a gun against an unarmed person was unnecessary. But I think that in many individual cases, it could be and should be justified.

And then as we go across the continuum to less obviously lethal weapons, the burden of proof should lessen. Scissors can be very deadly, but they're clearly in a different category than something that is exclusively a weapon and is carried with the awareness that it is a weapon. It is natural that someone who is retreating from an attacker and already injured would use something at hand to defend herself. My ideal outcome of this event would have been for the police to question McDonald and then release her, concluding that this was justified self-defense. Or, failing that, arrest her and then the prosecutor's office decides not to prosecute. I think there should be some intense scrutiny when you stab an unarmed person to death with scissors. But I think McDonald's justified self-defense should have withstood that scrutiny.
posted by Ivan Fyodorovich at 2:18 PM on January 21 [4 favorites]


randomnity: " If a pair of sewing scissors can be considered a "deadly weapon", wouldn't the glass she was slashed in the face with count as a deadly weapon as well? It may not have killed anyone, but it could have."

Flaherty was eventually charged with assault with a deadly weapon, but, afaik, that never came to trial--she plead guilty to a different assault charge. And by 'eventually' I mean, nearly a fully year after the incident, after CeCe took the plea bargain, lest anyone get the impression that anyone with power in Minneapolis was at all interested in sorting out what had happened.

Ivan Fyodorovich: "Did she stab him multiple times, resulting in his death? Yes."

It remains unclear exactly what happened and I can't find this stated explicitly, but I think Schmitz died from a single wound. You also seem to be assuming a far less chaotic confrontation than seems to have happened, in which 'she stabbed him' isn't necessarily as clear cut as it seems.

(Also, maybe Frowner can confirm this, but I seem to recall quite a sizeable effort had to be made to get the court to use the correct title and pronouns. As a FYI for anyone reading court documents.)
posted by hoyland at 4:28 PM on January 21 [1 favorite]


I prefer there to be a continuum where someone using a firearm against an unarmed person is on the extreme end of the continuum whereby the burden of proof is on them to demonstrate that they were justified to use deadly force with a firearm in self-defense.

But now you have a class of crimes for which the defendant is guilty until proven innocent. While we do want to discourage the use of unnecessary force in self-defense, I don't agree that this would be justice. Intense investigation makes sense; changing the legal standard of guilt does not.

That the courts are more lenient towards women wouldn't help. Relying on that bias to patch a flaw in the system would only result in more injustice, because you are relying on the defendant being sympathetic to the jury. In other words, you are relying partially on the defendant being straight, cis, white, and female. Women like CeCe lose.
posted by Kutsuwamushi at 6:42 PM on January 21 [3 favorites]


Also, members of groups that are frequent victims of hate-based violence (like trans women) would have less of a legal right to defend themselves.
posted by Kutsuwamushi at 6:48 PM on January 21


CeCe's justification is less clear according to this account in CityPages. It agrees that CeCe and her friends were verbally assaulted by Schmitz's group, after which CeCe approached Schmitz and threatened to attack him. During this altercation Flaherty (allegedly?) cut Cece with broken glass. CeCe and her friends then attacked Flaherty, and Schmitz and Gilbert (Flaherty's boyfriend, who had just left the bar) tried to rescue her. Schmitz pulled Flaherty away and they moved into the street.

It is at this point that Flaherty says she was trying to get away, but I don't know if I believe that: the rest of her group was apparently still attacking Flaherty, and by her own admission Cece had actually threatened to attack him at the start of the incident. Schmitz was "shuffling his feet like, you know, something like you would do in boxing" and he asked CeCe "You gonna stab me, you bitch?" This turned out to be the wrong question. CeCe stabbed him with her scissiors and he died. Lawbooks are full of deaths caused by relatively trivial attacks, but I wouldn't have expected that an amateur could kill someone in one blow with a pair of scissors.

Anyway, the USA really needs a way to deal with these things other than physical violence. A constant victim of verbal assaults must have a miserable life, and they need some legal remedy. None the less, CeCe killed someone, and even if her attack was self-defence at that point, this was after she had escalated the situation. Some charge was definitely appropriate and second-degree murder is within the range of plausible verdicts. That being said, I'm glad she's now free.
posted by Joe in Australia at 6:58 PM on January 21 [1 favorite]


Yeah, it's surprisingly easy to rules-lawyer it so it's CeCe's fault.
posted by ArmyOfKittens at 7:21 PM on January 21 [3 favorites]


I dunno if you need to work too hard to make "stabbed someone to death" be at least partially the fault of the stabber.

Possible rule: Don't stab anyone.
posted by squinty at 7:50 PM on January 21


It is worth making a note here that trans women who do not or can not physically defend themselves when assaulted are often murdered on the spot (this woman's body was discovered in a trash can) or injured badly enough that they die soon after the attack. Violence against trans people happens constantly, and the choices in the system we have for a trans woman of color being assaulted are often between death and prison.

Note: Links pulled very lazily almost at random. It is not difficult to find this stuff.
posted by byanyothername at 8:00 PM on January 21 [11 favorites]


During this altercation Flaherty (allegedly?) cut Cece with broken glass.

This is established. She plead guilty to an assault charge, so presumably her account is in a court document somewhere. But in any case, what are you going to argue, that CeCe tripped and cut herself?

squinty: "I dunno if you need to work too hard to make "stabbed someone to death" be at least partially the fault of the stabber."

How about "There was a scuffle and scissors ended up in someone's chest"? Sure, getting the scissors out makes it more likely someone's going to be stabbed with them, but there's a lot of room between scissors out in a scuffle and stabbing someone intentionally. It's perfectly likely the truth is somewhere between those two extremes, but we're not going to be able to figure it out. Those who read the transcript will note that CeCe quite specifically avoided agreeing in court that she stabbed Schmitz.

Of course, let's ignore every deeply fucked up element of this situation and explain why it must be the trans woman's fault and how she deserved everything a biased system could throw at her.
posted by hoyland at 8:00 PM on January 21 [1 favorite]


I said "allegedly" because I wasn't sure if it had been established that Flaherty had stabbed her, or if it might have been someone else. I have no interest in defending Flaherty's group, who seem both thoroughly vile and the ones who started the incident.

Of course, let's ignore every deeply fucked up element of this situation and explain why it must be the trans woman's fault and how she deserved everything a biased system could throw at her.

I'd say she deserved a conviction for murder in the second degree, and a relatively brief prison sentence. CeCe showed great courage in confronting the people abusing her group, but given the facts before us, she was wrong to kill Schmitz.
posted by Joe in Australia at 9:02 PM on January 21


If you're a black trans woman in America, there is no right way to defend yourself.
posted by ArmyOfKittens at 9:08 PM on January 21 [18 favorites]


I'd say she deserved a conviction for murder in the second degree

She was convicted of manslaughter, not murder.
posted by bleep-blop at 11:50 PM on January 21


My mistake, sorry.
posted by Joe in Australia at 12:36 AM on January 22


Interesting that you take that one write-up as gospel, Joe, over for example the heavily referenced wikipedia article.
posted by Dysk at 2:43 AM on January 22 [4 favorites]


"...changing the legal standard of guilt does not."

You're confusing the presumption of innocence in general with self-defense. In many or most US jurisdictions, a defendant pleading self-defense has the burden of proof to establish self-defense. That's independent of the larger presumption of innocence.

This is why there are jurisdictions that have specific laws that attempt to reverse this calculus in certain situations. Stand your ground laws are one example; home defense laws are another. Those laws specifically require law enforcement to presume self-defense in certain situations. I oppose those laws, by the way. But outside of those laws, if you kill someone, it's up to you to convince the police, the prosecutor, and possibly the court/jury that you were acting in self-defense.
posted by Ivan Fyodorovich at 3:57 AM on January 22 [1 favorite]


That City Pages article was widely held to be pretty terrible around here. I don't have time to look at it point by point and I've blocked out the memory, but it was called out for being really scandal-mongering and transphobic (and the cover was, like, a pair of scissors - it was just a shitty cover, and it made me really sad because back in the nineties the City Pages used to be pretty left wing and did some decent journalism.) I would not trust the CP article over other sources.
posted by Frowner at 5:12 AM on January 22 [2 favorites]


I'm not sure any piece of random internet content has put as big and genuine a smile on my face as when the photo of CeCe and Laverne listening to Beyonce together was going around Tumblr.
posted by ArmyOfKittens at 6:33 AM on January 22 [6 favorites]


AoK: I know, right?!? So cute. CeCe is so young; she turned 25 in prison. Getting to just be a normal young woman hanging out and having fun is something that was stolen from her for so long, and it's a beautiful thing to see her not only get her life back, but blossom.
posted by Juliet Banana at 7:09 AM on January 22 [3 favorites]


if you kill someone, it's up to you to convince the police, the prosecutor, and possibly the court/jury that you were acting in self-defense.

The process of getting to trial can still be unfair/bigoted and make being able to prove this difficult or impossible. Unjust punishment (like sending a woman to a men's prison) also delegitimizes everything, no matter how much lawyers and would-be-internet-lawyers like to believe otherwise.
posted by bleep-blop at 11:25 AM on January 22 [1 favorite]


"The process of getting to trial can still be unfair/bigoted and make being able to prove this difficult or impossible. Unjust punishment (like sending a woman to a men's prison) also delegitimizes everything, no matter how much lawyers and would-be-internet-lawyers like to believe otherwise."

I agree. That's the problem. Not that people aren't allowed to use deadly force, then using an unproven claim of self-defense as a get-out-of-jail-free card. If that were the case, then Zimmerman wouldn't even have relied upon the Stand Your Ground law, the mere claim would have sufficed.

But, absent such specific laws, a mere claim doesn't suffice and shouldn't suffice.

If you don't see how your argument fails by the mention of Zimmerman, then I'll spell it out for you: if minorities and trans* folks and the like face a legal system that is biased against them, and where a mere claim of self-defense is sufficient, then encounters such as McDonald experienced will end up with minorities and trans* folk dead, and privileged people claiming self-defense.

For every example where an automatic self-defense claim benefits an oppressed class, there will be ten that benefit the oppressing class.
posted by Ivan Fyodorovich at 12:12 PM on January 22 [2 favorites]


I didn't make an argument, spell shit out to yourself.
posted by bleep-blop at 1:35 PM on January 22 [1 favorite]


I'm not sure why our personal thoughts on legal theories of self-defense are particularly relevant.
posted by hoyland at 4:36 PM on January 22


Because she was defending herself and many people think she shouldn't have been prosecuted?

The issue of self-defense is as relevant here as it was in the Zimmerman trial. Any categorical claim about the acceptability of the self-defense claim, that it should be assumed valid or that it should be proven, will run afoul of what most of us believe is justice in these two representative cases.

It's not prima facie outrageous that McDonald was severely scrutinized, or even arrested, after killing an unarmed person with a deadly weapon. It's that a review of the circumstances of the incident should have resulted in a decision to not prosecute.

It was Schmitz's group that instigated the conflict. It was Flaherty who attacked McDonald with a deadly weapon. And McDonald retreated, injured, with Schmitz following. It's hard to imagine a case like this (where someone kills an unarmed person with a deadly weapon) that could be more exculpatory to the killer. If this case should have been prosecuted, then pretty much every case like this should be prosecuted. Except that they aren't.

The first injustice McDonald experienced was the hate crime of being harassed by Schmitz's group and attacked by Flaherty. The second injustice that McDonald experienced was to be prosecuted when so many other people in her position haven't been and wouldn't have been. The third injustice was being sent to a men's facility. The third injustice follows from the second.

So the bulk of this hinges upon the inconsistencies of how the self-defense claim is handled by police and prosecutors, and that's all about the simple fact that they will accept a self-defense claim by someone who they view as sympathetic, and will not accept a self-defense claim by someone who they mistrust, in this case a black trans woman.
posted by Ivan Fyodorovich at 5:05 PM on January 22 [2 favorites]


So the bulk of this hinges upon the inconsistencies of how the self-defense claim is handled by police and prosecutors, and that's all about the simple fact that they will accept a self-defense claim by someone who they view as sympathetic, and will not accept a self-defense claim by someone who they mistrust, in this case a black trans woman.

Right, which is why I'm a bit baffled by the "let's talk about self-defense in the abstract, as if this happened in a vacuum" thing.

You're not going to be able to decide the legal merits of CeCe's self-defense claim, as the information just isn't available. But the merits are also largely irrelevant. She was put in a situation where in made sense to take the plea bargain, no matter how unjust it was.
posted by hoyland at 5:43 PM on January 22


Ivan Fyodorovich wrote: a review of the circumstances of the incident should have resulted in a decision to not prosecute

This seems weird to me. It is very very unusual for killers in Australia not to be prosecuted. Even if they have a defense, that defense needs to be tested in court. I agree with your earlier comment:
For every example where an automatic self-defense claim benefits an oppressed class, there will be ten that benefit the oppressing class.
There are some cases where the need for self-defense was so evident that a prosecution would be pointless; there are other cases where it would be harsh, or cruel. But this case (*) isn't one of those.

On the other, ArmyOfKittens makes an unarguable point above: If you're a black trans woman in America, there is no right way to defend yourself. The verbal abuse that CeCe's party suffered would have been illegal in Australia, the UK, and (I think) in Canada. I don't know how the First Amendment affects the situation in the USA, but surely there is a fundamental common law right to walk down a street without harassment.

(*) The City Pages article is Wikipedia's major source for the description of the fight, but if people want me to refer to Wikipedia instead, fine; what do I care.
posted by Joe in Australia at 8:26 PM on January 22


Wikipedia's 'stabbing incident' section has at least nine different references, of which City Pages is but one, and the overall narrative arc it constructs is very very different.
posted by Dysk at 9:11 PM on January 22


I can pick nits as finely as anyone; nearly 40% (12/31) of the citations are to City Pages. But in any event they're substantially the same and my summary is based on Wikipedia's account:
Schmitz's group abused Cece's group; CeCe's group approached Schmitz's group and CeCe remonstrated with them; Schmitz walked away; a fight between CeCe's group and Flaherty began (in which Flaherty threw the first punch, and hit or cut CeCe with a broken glass); Flaherty's boyfriend exited the bar and tried to pull people off her; Schmitz pulled CeCe away from Flaherty and they moved into the street1 while the fighting continued. Schmitz clenched his fists2 and CeCe threatened him with a pair of scissors; Schmitz said you gonna stab me, you bitch? and CeCe actually did stab him.3 Schmitz collapsed and CeCe's group scattered when they saw him bleeding.

1 Wikipedia says McDonald's defense characterized this move as McDonald having attempted to leave the scene, attempted to get out of harm's way.

2 City Pages quotes a witness as saying that he was shuffling his feet like, you know, something like you would do in boxing.

3 In an interview, CeCe said Schmitz charged her and ran onto the scissors. I can't imagine anyone doing that, but in any event she had the scissors out and aimed at his heart.
My understanding of the law is that for CeCe's actions to be legitimate self defense she would have had to have been defending herself against an unlawful attack. In most jurisdictions her actions would have had to have been "proportionate", but this is the USA and who knows. Anyway, Schmitz was not unlawfully attacking CeCe at the time that he was pulling her away from Flaherty. When he adopted a fighting stance he may have been trying to defend himself, or attack CeCe, or block CeCe from returning to the attack on Flaherty. We don't know, and it would be up to a jury to decide that. And that's why I believe it was correct to prosecute her: because the killing was possibly unlawful. There are certainly questions about whether she could have received a fair trial and whether she would have been sentenced fairly, but those are subsequent issues - and broader ones. The decision to prosecute, though, seems totally justified.
posted by Joe in Australia at 11:17 PM on January 22


District Attorneys in the US choose what to prosecute and not prosecute. A prosecutor is not required to prosecute every crime and they will consider many factors when making that choice, from the likelihood of a conviction to more nebulous concerns about justice.

If McDonald had been a young, white woman harassed by young black men on the street, attacked with a bottle by one of them and cut across her face, retreated from the scene but with another of the group following behind her, whereupon she attacked him with scissors, killing him, I feel certain that while the police might still have questioned McDonald, they probably wouldn't have arrested her and the DA definitely wouldn't have prosecuted.

The DA wouldn't have prosecuted because this was a clear case of being attacked, injured, fearing for one's life, and defending oneself. Even if it's a different person than the initial attacker, it's a member of the group that initiated the attack and, furthermore, followed her away from the scene.

Yes, it's not proportionate force. Yes, it was Flaherty and not Schmitz who cut her face. But a prosecutor is not required to prosecute everything that meets the legal definition of a crime. The real world is messy. A prosecution and conviction is not necessarily a just outcome even when according to the letter of the law a crime has been committed.

And a jury does not have the latitude that the prosecutor's office has. A jury will be given jury instructions defining the crime and, if applicable, what standards must be met to qualify for self-defense, and if they believe that those standards are not met, and if they believe beyond reasonable doubt that the accused is guilty of the charge, they must find the accused guilty. They cannot find the accused not guilty because they believe the accused committed the crime, but that the circumstances were extenuating.

But the prosecutor can make that judgment. And the prosecutor should make that judgment, when it's warranted.

I agree, as I've said several times, that any time someone kills an unarmed person with a deadly weapon, that person should undergo intense scrutiny if they claim that they were acting in self-defense. They should at the very least be questioned in great detail, perhaps arrested, and an initial investigation performed. The prosecutor will decide whether the claim of self-defense is sufficiently proven such that a prosecution is unnecessary. This happens frequently when the circumstances are more unambiguous, such as when both people were unarmed and the deceased was witnessed initiating the attack, or the deceased initiated the attack with a deadly weapon. Everything can stop at that point, no trial necessary.

If the police and prosecutor don't believe that this was valid self-defense, then the prosecutor can choose to prosecute and at trial the defense may argue for self-defense.

Bottom line: in the US system, the issue of self-defense is not necessarily, or even usually, settled in trial. Where it's relatively unambiguous, it's determined by the police and the prosecutor's office and there is no prosecution. "Relatively unambiguous" is ambiguous, of course, and so this ultimately reduces to prosecutorial discretion. And that's okay. Because with the US's jury trial system, the trial has less room for such discretion.

I think it's almost certain that given the uncontested facts, McDonald would have been convicted of manslaughter or second-degree murder at trial. I don't think this would have been just. The DA shouldn't have prosecuted.
posted by Ivan Fyodorovich at 1:37 AM on January 23 [2 favorites]


Prosecutors in Australia have discretion too, but I would expect them to put questions of fact before a court. Anyway, you know the USA better than I do, obviously, so I won't argue.
posted by Joe in Australia at 3:09 AM on January 23


Joe in Australia, you're also suffering from the delusion that a jury would have been anything approaching impartial. Maybe some other Minneapolis people want to disagree with me, but I don't think a trans woman of color could have a fair trial here. You may want to consider the ramifications of that in your notions of how things should have played out. Or are you arguing none of this was unjust? Because then I'm just going to laugh.

3 In an interview, CeCe said Schmitz charged her and ran onto the scissors. I can't imagine anyone doing that, but in any event she had the scissors out and aimed at his heart.

Oh, for heaven's sake. You grab someone holding a sharp object. There's no chance the sharp object ends up in you? Dying from a single stab wound to the heart in this situation is basically a freak occurrence. Could you reliably stab someone in the heart if you tried? I couldn't. Frankly, I couldn't tell you where to aim on a CPR dummy with any degree of precision. Introduce adrenaline and I'm not aiming scissors at anyone's heart. In their general direction, yes. In a direction where they could end up in their heart, yes. Much more than that? No.

But, yes, carry on telling us all how it should have played out. The police and the DA did such a good job, I can't wait to hear more.
posted by hoyland at 5:55 AM on January 23 [2 favorites]


"You grab someone holding a sharp object. There's no chance the sharp object ends up in you? "
I though the argument was would he be grabbing someone, so obviously holding a sharp object..? But this isn't a trial, so the details of what happened exactly aren't at all clear.
posted by dabitch at 11:34 AM on January 23


Joe in Australia, you're also suffering from the delusion that a jury would have been anything approaching impartial. Maybe some other Minneapolis people want to disagree with me, but I don't think a trans woman of color could have a fair trial here.

You might very well be right, but what's the solution? Don't ever prosecute trans women of color?

Oh, for heaven's sake. You grab someone holding a sharp object. There's no chance the sharp object ends up in you?

Sure. Did he run at her? Did he grab her? Neither of us knows, but there's at least some chance that she stabbed him, right? You need a trial to establish what happened. Ivan Fyodorovich says that in the US justice system, under these circumstances, a prosecution wouldn't be just. As I said above, I accept his view.
posted by Joe in Australia at 2:53 PM on January 23


Maybe have the DA follow his own prior pardons and not prosecute due to self defense, as Frowner mentioned earlier. If anything, the well recorded higher probability of a trans woman to experience harassment and threats should push it closer to self defense - not that every possible case has to be in the woman's favor, but certainly should be a factor open for consideration.

Let's go through the Jury thing a little more. It's not just Minneapolis, it's all of Hennepin county. Minneapolis is already disproportionately white for a US city of its size, and it only contains 40% of the residents of Hennepin. The suburbs are, for the most part, even whiter than the city.

The way that Jury summons are chosen skews at least slightly to suburban (and White) populations - it's done by current drivers licenses, state ID, and voters registration. If you don't own a car - well, the liquor store probably doesn't care if your state ID is expired.

Hennepin County pays $10 a day for jury duty. Not $10 an hour. $10 a day. If you have a job that does not reimburse for jury duty and being paid $10 a day for the length of a murder trial is a hardship for you, the judge will consider excusing you from the trial. Likewise, it reimburses $40 a day for childcare - no matter how many children you are responsible for, $40 is the maximum you can request from the county for childcare (for the record, $40 is closer to the amount expected to board a dog for a day than childcare expenses). Again, if you are unlikely to be able to find childcare for the duration of the trial, you can admit it to the judge and are far more likely to be dismissed from Voir Dire.

Service industry jobs are much less likely to pay for jury duty than white collar office jobs, and because of the demographics of who is likely to hold a service industry job in Hennepin county, the possible jury population is skewing even more White and Male. Not to mention childcare.

Finally, this case was well publicized enough that anyone who was vaguely interested in trans activism was likely to hear about it before it went to trial - I know I'd heard about CeCe long before she went to prison and I think before she pled, and the only thing I do for trans rights is try not to actively be an asshole (and occasionally fail at that). The people who are most likely to be aware of trans issues are almost certainly to be excluded from a case like this due to prior knowledge of the case.

So, it's not like the general population is great with issues surrounding Blacks, Women, or transgendered people (much less a Black trans woman), but the probable jury pool is skewing even more White, Male, and ignorant of trans issues. Expecting a jury trial to resemble justice in this point is shockingly naive.
posted by dinty_moore at 4:10 PM on January 23 [4 favorites]


"So, it's not like the general population is great with issues surrounding Blacks, Women, or transgendered people (much less a Black trans woman), but the probable jury pool is skewing even more White, Male, and ignorant of trans issues. Expecting a jury trial to resemble justice in this point is shockingly naive."

That's true, but I don't think you need to assume this to argue that McDonald shouldn't have been prosecuted, nor do you need to assume that she is not directly responsible for Schmitz's death.

The DA has discretion, but the jury does not. That's all that's required to understand why McDonald shouldn't have been prosecuted. If there were a preponderance of evidence that McDonald stabbed Schmitz intentionally with the scissors, that Schmitz was unarmed, and that Schmitz did not assault McDonald, then depending upon the jurisdiction's standard of self-defense, the jury would have to find McDonald guilty. There's too much uncontested in this, too much that was witnessed, too much that is unambiguous. I think that, according to the letter of the law, this was not self-defense, it was manslaughter.

While there's the presumption of innocence, there's not the presumption of self-defense. A trial would, as Joe in Australia describes, decide certain matters of fact. It would not be about discretion, extenuating factors, and a broader notion of justice. It would be about X, Y, and Z.

This is why in cases where there are extenuating factors (such as a long-abused wife killing her abusive husband) and other difficult considerations the DA can and may choose not to prosecute. Justice can be served by not prosecuting something that most agree is a crime according to the letter of the law.

In the US, District Attorneys are usually elected positions. A DA's office that routinely exercises such judgment in ways that conflict with most others' will not be re-elected. A DA that exercises such judgment in ways that are corrupt or very biased according to things like bigotry, may also face inquiries from several quarters, from the federal government to the bar. It's not as if there's no check on such discretion.
posted by Ivan Fyodorovich at 5:46 PM on January 23


Living as a Transgender Woman in a Texas Men's Prison

(some of the phrasing is sub-optimal)
posted by Corinth at 11:13 PM on January 31 [1 favorite]


"Black Trans Bodies Are Under Attack": Freed Activist CeCe McDonald, Actress Laverne Cox Speak Out
posted by homunculus at 9:10 AM on February 19


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