Back in June, I wrote about the arrest of Atlanta baseball outfielder Marcell Ozuna for domestic violence. Police alleged that Ozuna had grabbed his estranged wife by the throat and thrown her into a wall.
Atlanta Braves star Marcell Ozuna was arrested today and charged with aggravated assault strangulation and misdemeanor battery - family violence in Sandy Springs, Ga., according to jail records on the Fulton County (Ga.) website.— Jeff Passan (@JeffPassan) May 30, 2021
But even at the time, I noted there was some reason to be wary about the police version of events.
Now, it’s important to note here the other dynamics at play. Ozuna is Black, and if you’re reading this you probably already know the troubling trends of false police testimony and other misconduct which all too often lead to the arrests and convictions of innocent Black men. As such, it would be foolhardy in the extreme to take the police narrative of events as incontrovertibly and unquestionably true.
It seems that disclaimer was unfortunately prescient. Last week, Amy Dash reported for Fox Sports Radio that bodycam video footage contradicted what officers had initially claimed in the warrants for Ozuna’s arrest.
Bodycam video from arresting officers in Marcell Ozuna’s domestic violence case casts doubt on allegations that the outfielder attempted to choke his wife, as initially reported by police, according to sources. . . . Strangulation or even merely placing hands on someone’s neck would create grounds for a felony charge of aggravated assault, strangulation in Georgia. However, sources say the video did not warrant such a charge, as it conflicted with at least some of the officer’s allegations.
Dash noted, however, that the video confirms Ozuna took some violent action towards his wife.
I confirmed that Marcell Ozuna's alleged assault and battery of his wife was caught on police bodycams. This means MLB will have to get a copy and take action unless it wants its own Ray Rice style stain. https://t.co/Wl3Akg2zjX— Amy Dash (@AmyDashTV) July 29, 2021
Ozuna is now facing two misdemeanor charges, battery and simple assault, and is actively discussing a plea deal with prosecutors. It should be noted that Sandy Springs police stand by their initial account of what occurred.
There’s a lot to unpack here. As an initial matter, it’s worth noting that multiple things can be true at the same time: Ozuna allegedly committing domestic violence does not mean that the officers who arrested him were justified in allegedly lying under oath on their warrant affidavits, nor does their outrageous conduct mean that Ozuna did not commit domestic violence. In fact, the available evidence suggests that both statements are likely true.
The practice of “overcharging” Black and Brown defendants - that is, turning misdemeanors into felonies in hopes of coercing those defendants into plea bargains - has a long and ignominious history in the United States. The process is as simple as it is odious: where you can prove a misdemeanor, charge a felony instead and see if you can coerce the defendant to plead to a higher charge than what you can actually prove. As Merdies Hayes explained several years ago,
From the government’s perspective, plea bargaining is less expensive and less time consuming than a jury trial. Also, by eliminating the jury, prosecutors and judges have more influence over case outcomes. In the eyes of the defendant, plea bargaining often extorts a guilty plea. When the prosecution allegedly has a “witness” (who may be willing to lie), and the defense attorney urges the person to take a one-year-sentence rather than risk a 10-year ruling, the decision of the defendant becomes much harder.
In most scenarios, a prosecutor has a good idea of what he/she can reasonably expect a jury to convict a defendant of, based on the evidence. But when the evidence is limited, a prosecutor may not believe that a jury will convict the defendant of any charges. With the responsibility of obtaining a conviction, the prosecutor may decide to bring several additional charges against the defendant. This process can function as a “threat” against the defendant to remind the person that they are in “big trouble.” If the defendant buys into this threat, the prosecution now has additional bargaining chips. Therefore, if the defendant is facing a slew of charges, he/she can be given the false impression that the best chance to face the least punishment would be to plead guilty to one charge in exchange for the others being dismissed. Basically, overcharging increases the power/influence the prosecution has in plea bargaining.
The University of Michigan published an article several years ago which examined the disparity in charges faced by white and Black defendants in detail, noting that, on average, Black defendants are far more likely to face felony charges than white defendants for the same conduct (emphasis mine).
Observing each case from arrest through to sentencing makes it possible to pinpoint where unexplained disparities emerge in the judicial process. We identify an important procedural mechanism that appears to give rise to the majority of the otherwise-unexplained disparity in sentences: how prosecutors initially choose to handle the case, in particular, the decision to bring charges carrying “mandatory minimum” sentences. The racial disparities in this decision are stark: ceteris paribus, black men have 1.75 times the odds of facing such charges, which is equivalent to a 5 percentage point or 65 percent increase in the probability for the average defendant. The initial mandatory minimum charging decision alone is capable of explaining more than half of the black-white sentence disparities not otherwise explained by precharge characteristics.
White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime. As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony. Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.
Simply put, all else equal, a white defendant is more likely to be charged with a misdemeanor - or not at all - for conduct which will be charged as a felony by prosecutors and police against Black defendants. Marcell Ozuna is not unique in this regard.
Now, Ozuna is charged with domestic violence, and that’s heinous whether or not it’s a felony charge. And it’s easy enough to argue that we should have no sympathy for a man who commits an act like this, given the police lie seems to be not whether he allegedly hit his wife, but how he did so. But this is a bad argument for several reasons.
First, that argument acquiesces in racist systemic behavior that should never be acceptable. It’s not okay to be racist to a person simply because they’re a domestic abuser. That the recipient of your bigotry or corruption is themselves a bad person doesn’t make you a hero. It just means that your racism is less likely to be stopped, and that is in and of itself rather problematic.
Second, we talk a lot about due process in domestic violence cases. This is exactly the sort of due process violation that actually matters: in a criminal proceeding, Ozuna is entitled not just to a presumption of innocence, but to a fair and impartial proceeding towards that end. Due process isn’t a right to play major league baseball. Due process isn’t disbelieving women who accuse powerful men of domestic violence. Due process is, however, the right to have police officers give truthful, accurate testimony about what occurred, and there is not - and should not be - a precedent that it is acceptable to lie to obtain a conviction in any case, and especially not on the basis of race.
Third, what police and prosecutors do by deliberately overcharging people of color in domestic violence cases is make it harder for their victims and survivors to come forward. That’s for several reasons. First, that kind of misconduct leads to overturned convictions. It also makes it less likely that people will come forward to report abuse if they believe (correctly) they will be subjecting their abuser to a racist system. It shows that the carceral state doesn’t care about protecting victims and survivors of domestic abuse so much as it does the conviction rate. And it bolsters the argument of abusers who defend themselves by citing Ozuna as an example of an exaggerated report of domestic violence, even though studies show exaggerations or false statements of domestic abuse by victims and survivors are extraordinarily rare.
And fourth, most people who are the victims of racist overcharging in the criminal justice system aren’t domestic abusers or violent offenders of any kind. Most, in fact, are nonviolent drug crimes or traffic stops. But beyond that, consider the argument here: we will look the other way when you leverage the power of the state towards a member of a marginalized group who has committed a crime, but we will not demand the same degree of punishment for members of non-marginalized groups who do the same thing. In other words, downplaying what was done here to Ozuna is exactly why powerful white men will continue to get away with conduct similar to what Ozuna is alleged to have done. After all, Ozuna was charged with a felony for domestic abuse. Meanwhile, Trevor Bauer hasn’t been charged at all.
Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.