Race, class and the Nestande case

So, I’ve been following and lightly attending the Nestande trial, for which the jury’s verdict—guilty of criminally negligent homicide/not guilty of failure to stop and render aid—came in today.

I posted about the verdict on the Facebooks, and there were varying degrees of opinion that the defendant’s class (rich) and race (white) and even political affiliation (red) helped her escape the more serious guilty verdicts of intoxication manslaughter and failure to stop and render aid. One person compared the case of Lauren Renee Cherry, a black woman from Austin who was charged with failing to redner aid after leaving the scene in a 2012 accident in which a 16-year-old victim was left brain dead. I can’t find out the disposition of Cherry’s case, but my Facebook friend says she was convicted, and after reading what happened, I don’t doubt it.

So did Gabrielle Nestande get a break because she was a well-off entitled-seeming white girl with Republican connections? No, I don’t think so. In fact, I think, on the contrary, she may have gotten more aggressive treatment from the Travis County DA’s office because of those things.

Think about it guys. The cops can put two and two together. When they interviewed Nestande the morning after the accident, they believed she was driving drunk, hit the woman, got scared and fled the scene. But they couldn’t prove it. Do you think they didn’t want to nail Nestande to the floor as vigorously as they could? Do you know the relationships cops and prosecutors develop with victims’ families? Come on. But they couldn’t prove it. 

OK, what about Lauren Renee Cherry? How does that inform this case? How that informs this case is it points out how screwed up the failure to stop and render aid law is. Cherry, after initially fleeing, returned to the scene of her accident and talked to the police, presumably prompted by her conscience. But the law doesn’t say anything about conscience, or provide leniency for conscience. The law is black and white. It says if you leave the scene of an accident, you’re guilty. How could they prove Cherry knew she left the scene of an accident? She told them. By doing the right thing (or closer to the right thing, anyway), Cherry gave the police and probably the courts a slam dunk. They like when that happens.

In our criminal justice system, the burden of proof is on the state. It’s hard to convict. An unbelievable number of criminal convictions depend on suspects’ confessions. Cherry gave the cops something to work with. Gabrielle Nestande didn’t. And yes, you could probably argue that her privilege, family history and education prepared her to do the wrong thing morally, which turned out to be the right thing to do legally.

That’s why I think her status actually made the County criminal justice system go after her more aggressively. I think the cops and the DA’s office were really, really pissed that this privileged party girl went out and killed this nice lady, equivocated (or flat-out lied) to their investigators about it, and immediately lawyered up—and it was gonna work for her! Does that sound like something that would sit well with cops and Travis County prosecutors? (Who, in case you don’t know, are not known for cozy relations with state or national Republican leaders.)

No. And it didn’t sit well. So they delayed and delayed indicting her until they built a deeper case and they felt like they could get an indictment for intoxication manslaughter—just as if she had failed a breathalyzer or a blood test.

And they did get the indictment. But it was a huge risk, because everyone knew that charge would be difficult, if not impossible, to prove. Seeking that indictment and fighting hard to convict her on that charge had something to do with her class and privilege, and I don’t mean that it helped her. At the very least, fighting the more serious charges probably added a six-figure sum to her legal bill. And it’s not like going through this trial was a cakewalk, not that I’m sympathizing.

Is our justice system completely class and color blind? No way. Is it a mistake to use this case to try to illustrate that point? Yeah, I think so.