SciFi Weekend: Leonard Nimoy, Who Lived Long And Prospered 1931-2015; Parks and Recreation Finale; Sleepy Hollow; Agent Carter; How To Get Away With Murder; Broadchurch; Arrow; 12 Monkeys

star-trek-spock-leonard-nimoy-nbc-pic

News of the death of Leonard Nimoy dominated the news and blogosphere since Friday. I had previous posts on Friday and Saturday, including  tweets from those who worked with him, those at NASA who were inspired by him, and even from President Obama. Obama also issued this longer statement:

Long before being nerdy was cool, there was Leonard Nimoy. Leonard was a lifelong lover of the arts and humanities, a supporter of the sciences, generous with his talent and his time. And of course, Leonard was Spock. Cool, logical, big-eared and level-headed, the center of Star Trek’s optimistic, inclusive vision of humanity’s future.

I loved Spock.

In 2007, I had the chance to meet Leonard in person. It was only logical to greet him with the Vulcan salute, the universal sign for “Live long and prosper.” And after 83 years on this planet – and on his visits to many others – it’s clear Leonard Nimoy did just that. Michelle and I join his family, friends, and countless fans who miss him so dearly today.

As Vulture pointed out, it is fitting that Obama had such a personal statement considering how often there have been comparisons of Obama to Spock.

Parks and Recreation Finale

The week also featured the series finale of Parks and Recreation along with several season finales. The series started with a weak first season. Probably as a combination of this, initially just seeing it as a spin-off of The Office, and not being excited by the premise of a small town in Indiana, it did make it on my DVR every week, but for a while it was often put off until I finished the other Thursday sit-coms. Then at some point I realized that the show which had me laughing the most was usually Parks and Recreation.

Part of the success of Parks and Recreation was the manner in which over the years many cast members were developed, allowing the show to go in many different directions. The heart of the show was the dichotomy between Leslie Knope (Amy Poehler) and Ron Swanson (Nick Offerman), but there was so much more going on. Both Chris Pratt and Aubrey Plaza were excellent supporting characters, and their roles become even more terrific with their romance and eventual marriage. Rashida Jones and Rob Lowe followed a similar trajectory. Adam Scott started as a semi-straight man to Rob Lowe, and then fulfilled a similar role, in a way replacing her best friend Ann Perkins, with Amy Poehler after Lowe and Jones left the show. Cast members including Aziz Ansari, Retta, Jim O’Heir, and others further fleshed out the people Pawnee far more than is seen in a typical sit-com. I think the show which came closest in this regard was not a half hour sit-com but was Northern Exposure.

With this diverse cast there was a wide variety of types of humor, not the repeated jokes which are rapidly recycled for laughs on many other sit-coms. Being a blog about politics and often genre, I would point out that both were included on Parks and Recreation. There was Leslie Knope, who was always optimistic about what government could do, even when facing obstacles, contrasted with the libertarian Ron Swanson, who was in government to try to make sure it didn’t do too much. Genre sometimes did sneak in, such as when Ben Wyatt (Adam Scott) once said told Leslie,I went back to season one of Fringe to check for plot holes. As suspected, it’s airtight.

The finale, like the finale of Parenthood, followed the Six Feet Under precedent of showing how the characters wind up. They did an excellent job. Instead of putting this at the end, the fate of each major, and some minor characters, were interspersed into a story in which the former employees of the Parks Department got back together for one last task. Although they thought it would be their last time together, their futures did include getting back together at key moments in their lives.

The Hollywood Reporter interviewed showrunner Mike Schur. He left it to our imaginations as to whether in one future scene we are seeing President Leslie Knope with Secret Service protection.

Sleepy Hollow Season 2 Finale

It is not known yet whether Monday’s episode of Sleepy Hollow will be a season or series finale, but after a weak season the show had an excellent episode which would work well as either. Abby’s trip into the past paralleled the series premiere, but this time Abby was in Ichabod’s role. Rather than having cliff hangers like last season, the episode tied up past plot threads, leaving only a vague mention of future battles should there be a future season. The episode ended with the core characters back together, and despite a weak second season I would be quite willing to give them another chance if the writers have figured out what to do with them for a third season.

Agent Carter Finale

Agent Carter concluded a self-contained story, and due to relatively poor ratings it is questionable if it will return. The season ended with Howard Stark exonerated, his inventions rescued, and the prevention of a disaster. Peggy had a moment of closure regarding the loss of Captain America. If the series returns, Dotty did survive to be a formidable ongoing enemy with her Black Widow training. Being Marvel, of course there was also a final scene, tying this into the rest of the Marvel universe. E! News spoke with the show runners:

E! News: Walk me through the decision to bring Dr. Zola onto the show, because as a fan of the Captain America movies, that was such a fun treat to find out what happened to him in between the first and second movie!
Tara Butters: We really wanted to connect Agent Carter to the greater MCU, and when we pitched the series to Marvel, they had brought up using Fenhoff as a way to connect to the Winter Soldier program. We had this idea of how great it would be to bring Toby Jones on for a scene—
Michele Fazekas: But we never thought that would actually happen. We thought we’d have to figure out a different way to make that happen. But then he was available and he was interested! That was really nice since a lot of different things could have gone wrong but it worked out.

The similarities between Peggy talking to Howard as he flies to his certain death and Peggy talking to Steve Rogers (Chris Evans) as he flew to his death were so striking. Did you shape the finale to mirror that final scene in Captain America: The First Avenger, or did that happen organically?
TB: When we broke out the season, we knew that that’s where we wanted to end, a version of that scene, a version of her talking down Howard. There’s been different iterations of it, though. At one point, it was Jarvis [James D’Arcy] talking him down and then Peggy, and then we flew Jarvis in the plane. But it was really lovely how ABC and Marvel gave us a lot of time to break out the eight episodes, so it felt like we really knew where we were going and it was really nice to see all of it pay off in the final episode.

How To Get Away With Murder Finale

How To Get Away With Murder ended its first season by tying up one murder and ending with another. It did seem anticlimactic to go an entire season to only find that the most likely suspect was guilty, even if he called on someone else to do the actual killing. For a while the format of having a season-long mystery on shows such as Veronica Mars, along with a mystery of the week, seemed like something new and refreshing. Now it has been done so many times that the US shows doing this seem much weaker than shows which don’t try to stretch things out for a whole season, or longer, and deal with a single storyline over a shorter season.

Executive producer Pete Nowalk discussed the season finale with E!

Broadchurch funeral

Several British shows have been successful with the more compact formula of a single story instead of interspersing a crime of the week, with season one of Broadchurch being among the best. The second season just concluded in the U.K. and a third season is planned. While not anywhere as good as the first season, the second season did turn out to be worth watching.

The second season of Broadchurch starts on BBC America on March 4 and there are major spoilers in the rest of this section for those planning to watch. The second season dealt with two story lines. The major story line is that Joe Miller recanted his confession to the killing of Daniel Latimer and the case wentto trial. This is the show which could have been named How To Get Away With Murder, as the person the viewer knows to be guilty was found not guilty in court in the season finale. The show has always concentrated on how the people of Broadchurch reacted to the murder, and for a moment it looked like they were going to respond to the faulty verdict with a lynch mob. Fortunately they did not go that far.

The show has a more powerful lesson about the limitations of the justice system with the erroneous acquittal of Joe Miller. It had me thinking that, if it also extended the story this long, how Gracepoint could have been a more significant show than it was by nearly copying everything from Broadchurch. The high profile cases in which the legal system has failed in handling whites who have killed blacks in this country could have provided a more topical influence, while still retaining aspects of Broadchurch.

The B storyline from Broadchurch involving the killings of two girls years ago was by far the weaker, and was tied up very quickly following the more interesting aspects involving Joe Miller. The season might have been better if it was shorter and this was left out.

Arrow Oliver and Ra’s al Ghul

Arrow was not a finale but, going on hiatus for a month, there was yet another cliff hanger on Nanda Parbat. How does Oliver respond to Ra’s al Ghul’s offer and also save both Diggle and Malcolm Merlyn? Marc Guggenheim answered some fan questions, including questions about Felicity sleeping with Ray Palmer, but no clues as to how the cliff hanger will be  resolved.

There are also reports of yet another planned spin-off. It will star Brandon Routh (Ray Palmer/The Atom), Victor Garber (Martin Stein, one-half of Firestorm on “The Flash”), Wentworth Miller (Captain Cold) and Caity Lotz (The first Black Canary). This raises at least two question. If Victor Garber is present, what about Robbie Amell, who plays the other half of Firestorm? As the Black Canary was killed, does this mean that the Canary will return to life, or that she will play a different character?

The other planned show in the same universe, Supergirl, has added a former Superman and Supergirl to the cast,  Dean Cain, who played Clark Kent in Lois & Clark: The New Adventures of Superman, and Helen Slater, who stared in the 1984 Supergirl movie. Calista Flockhart has also been added to the cast.

12 Monkeys 2

12 Monkeys had another strong episode in which time travel, along with the relationship between Cole and Cassie, played a big part. There was also a sort of role reversal here like on Sleepy Hollow. With his time jumping, there was a period in which Cassie was ahead of Cole, and realized he could be going to his death but could not warn him. There is no doubt that Cole will return, as was verified by executive producer Natalie Chaidez, but with time travel it is possible that he will not return in the same timeline to the point after this episode concluded for Cassie. He is certainly going to make it back to 1987 at some point. The episode also included an evil version of Edward Snowden, but the CIA was far more evil in unleashing a virus to try to kill him without taking the blame.

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Kaiser Health Tracking Poll Shows Most Support Fix For Subsidies Under Affordable Care Act

While you can never be certain as to what the Supreme Court would do, I’ve always felt that it is most likely that they would ultimately find that King v. Burwell is a frivolous case. (In other words, the most conservative justices might accept it, but John Roberts will cast the deciding vote against it if needed). This case is the latest Republican attempt to overturn the Affordable Care Act in the courts because of some language in the law, contradicting other portions, which could be taken to mean that subsidies are only available to those who obtain coverage through state exchanges, and not the federal exchange.

As I’ve pointed out in the past, it would politically be bad for Republicans if the court ruled against the Obama administration in this case. If the Supreme Court does accept the absurd argument that subsidies should only be available under the law for policies purchased on state exchanges, the simplest solution would be for Congress to revise a few words in the law to fix the problem. It is rather common for Congress to pass laws after major legislation to fix minor problems, except in this case Republicans in Congress are more interested in repeated, futile efforts to repeal ObamaCare as opposed to making such fixes–with yet another repeal vote now planned.

The Kaiser Health Tracking Poll for January finds that relatively few people are now aware of King v. Burwell, but most people do think that Congress should fix the problem. Among total voters, passing a law to fix this is supported 64 percent to 27 percent. There is similar support among independents, greater support among Democrats, and even a substantial number of Republicans (40 percent) would support such a fix:

King v Burell

If this is not fixed by Congress passing such a law, the second solution would be for states to start their own exchanges. A majority would also support this in affected states. Even Republicans support this, although at lower levels than Democrats and independents:

King v Burell2

I suspect that Republican leaders would much prefer to see the Supreme Court not put them in a position to have to take such action, either in Congress or at a state level. Failure to take such action would make displease the majority of voters, while taking such action would displease their base, who might take revenge in primaries where they dominate.

Update: Hospitals and insurance companies also lose if the subsidies are not continued, and are therefore also defending the subsidies before the Supreme Court.

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NAACP Legal Defense Fund Files Complaint Against Prosecutors For Misconduct In Darren Wilson Case

Following the ACLU taking the case of a member of the Ferguson grand jury who is suing to be able to speak publically about how prosecutor Robert McCulloch misrepresented the proceedings, the NAACP Legal Defense Fund  has written a letter to Missouri Judge Maura McShane asking her to investigate Ferguson prosecutor Bob McCulloch and two assistant prosecutors for misconduct. St. Louis Public Radio reports:

St. Louis County prosecutor Bob McCulloch and two of his assistants are facing a misconduct complaint for the way they handled the grand jury that investigated former Ferguson police officer Darren Wilson.

The complaint was filed Monday with the Missouri Office of Chief Disciplinary Counsel which handles attorney discipline in the state. It accuses McCulloch and assistants Kathi Alizadeh and Sheila Whirley of “gross failure to vigorously represent their client – the citizens of St. Louis, Missouri, in their capacity as prosecutors.” Alizadeh and Whirley were in charge of presenting the Wilson case to the grand jury.

“We would like to send the message that prosecuting attorneys can no longer abuse their power and expect it to be swept under the rug,” said Christi Griffin, a former attorney who is the founder and president of the Ethics Project, and one of seven citizens to sign the complaint.

Specifically, McCulloch, Alizadeh and Whirley are accused of violating the following rules of conduct:

  • Rule 4-3.3: Candor toward the tribunal. The complaint says, among other things, that  Alizadeh and Whirley cited an outdated, unconstitutional use-of-force statute, and failed to properly correct their mistake. The two are also accused of knowingly allowing witnesses to lie to the grand jury.
  • Rule 4-1.1: Competence. Historically, the plaintiff — or the person bringing the case — is supposed to receive the benefit of the doubt. In the Wilson case, the state is the plaintiff. The complaint alleges that Alizadeh and Whirley, presumably with McCulloch’s knowledge, did not do all they could to present the strongest case for the state.
  • Rule 4-1.6: Confidentiality of information. The complaint says McCulloch needed permission to release the transcripts of grand jury testimony and witness statements and that he dumped all the evidence in an effort to taint a second grand jury.
  • Rule 4-1.8: Conflict of interest: prohibited transactions. The complaint alleges that Alizadeh and Whirley acted more like Darren Wilson’s defense attorneys. They cite the continual references to the marijuana in Michael Brown’s system, and the fact that he was suspected of robbing a convenience store moments before the shooting.
  • Rule 4-3.8: Special responsibilities of a prosecutor. The complaint alleges that McCulloch made several public statements that went beyond what’s permitted to “inform the public of the nature and extent of the prosecutor’s actions.”
  • Rule 4-3.4: Fairness to opposing party and counsel. McCulloch made several public statements that seemed to bolster Wilson’s statements, while commenting negatively about Michael Brown.
  • Rule 4-3.5: Impartiality and decorum of the tribunal. Alizadeh is accused of making comments about protesters, the NAACP and Ferguson unrest that could prejudice the grand jurors.
  • Rule 4.4-1: Truthfulness in statements to others. This complaint also deals with the outdated use-of-force statute originally presented to the grand jury. It specifically references the day Alizadeh handed the copy of the unconstitutional statute to the grand jury, and also comments she made about messing up the exhibit numbers.
  • Rule 4-5.2: Responsibilities of a subordinate lawyer. Alizadeh and Whirley were required to abide by the rules of professional conduct regardless of what McCulloch told them to do.

Griffin said the availability of the transcripts and evidence, even though it was released in violation of the codes of conduct, brought to light problems with the entire judicial system.

“It’s made possible by the prosecutors, because as long as the police can expect not to be prosecuted for their misconduct, they will continue to over-police, they will continue to abuse citizens, they will continue to use excessive force,” she said.

There is speculation that this could result in the reopening of the case with a special prosecutor forming a new grand jury to reconsider indicting Darren Wilson for shooting Michael Brown when considerable evidence shows he was attempting to surrender.

I am not very optimistic that there will be action on this letter. St. Louis Public Radio also reports that an attorney serving as a legal consultant “said he was unaware of any Missouri prosecutors who were ever publicly disciplined, even for what he said were pretty egregious violations.” On the other hand, the unprecedented level of publicity surrounding this case, and the considerable evidence of misconduct on Wilson’s part, including using witnesses who he knew were lying and giving incorrect instructions to the grand jury, could make it more difficult for Missouri officials to continue to sweep this killing by a police officer under the rug.

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Member of Ferguson Grand Jury Suing To Be Allowed To Speak Out On How McCulloch Mischaracterized The Case

There have been multiple irregularities in the grand jury proceedings regarding Darren Wilson, who shot Michael Brown when both eye witnesses and forensic evidence suggest he was attempting to surrender. The case was handled improperly in order to protect Wilson from facing a fair trial, with the prosecutor essentially acting as the defense for Darren Wilson. There were also irregularities in how the evidence was handled and in the directions given to members of the grand jury. Prosecutor Robert McCulloch  has admitted to using testimony from people he knew were lying in defense of Wilson.

It is important in a case such as this for there to be a fair and open trial, in which the evidence can be reviewed,  witnesses are cross examined, and there is public record of the proceedings. Following all the irregularities in the Ferguson case, we now have a member of the grand jury who is suing to be allowed to talk about the hearing, stating that McCulloch has misled the public about the case:

The grand juror, referred to only as “Grand Juror Doe” in the lawsuit, takes issue with how McCulloch characterized the case. McCulloch released evidence presented to the grand jury and publicly discussed the case after the grand jury decided not to indict Wilson, then a Ferguson police officer, in the shooting death of Michael Brown, an 18-year-old African-American.

“In [the grand juror]’s view, the current information available about the grand jurors’ views is not entirely accurate — especially the implication that all grand jurors believed that there was no support for any charges,” the lawsuit says. “Moreover, the public characterization of the grand jurors’ view of witnesses and evidence does not accord with [Doe]’s own.”

“From [the grand juror]’s perspective, the investigation of Wilson had a stronger focus on the victim than in other cases presented to the grand jury,” the lawsuit states. Doe also believes the legal standards were conveyed in a “muddled” and “untimely” manner to the grand jury.

In the lawsuit filed Monday in federal court, the American Civil Liberties Union of Missouri argues that this case is unique and that the usual reasons for requiring the jurors to maintain secrecy should not apply.

In this specific case, “any interests furthered by maintaining grand jury secrecy are outweighed by the interests secured by the First Amendment,” the lawsuit says, adding that allowing the juror to speak would contribute to a discussion on race in America.

As the grand juror points out in the lawsuit, the Wilson case was handled in a very different manner than other grand juries. Instead of recommending a charge, McCulloch’s office presented thousands of pages worth of evidence and testimony before the grand jury. At one point, McCulloch’s spokesman characterized the grand jury as co-investigators.

“From [Doe]’s perspective, although the release of a large number of records provides an appearance of transparency, with heavy redactions and the absence of context, those records do not fully portray the proceedings before the grand jury,” the lawsuit says.

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Ferguson Prosecutor Admits To Allowing Testimony From People Who Were Clearly Lying

We have already seen many signs that the grand jury investigation in Ferguson was handled improperly, with the prosecutor essentially acting as the defense for Darren Wilson. There were also irregularities in how the evidence was handled. Wilson was allowed to present his case without undergoing cross examination, despite his testimony being contradicted by physical evidence and some of the witnesses. Now prosecutor Robert McCulloch has admitted in an interview (video above) that he allowed people to testify who were clearly lying. The St. Louis Post Dispatch reports:

Certain witnesses who spoke before the grand jury investigating the Aug. 9 shooting of Michael Brown told obvious lies under oath, St. Louis Prosecuting Attorney Robert McCulloch said Friday.

“Clearly some were not telling the truth,” he said during an interview on KTRS 550. He added that he’s not planning to pursue charges against any lying witnesses.

In his first extensive interview since the grand jury decided not to indict Ferguson Police Officer Darren Wilson, McCulloch said he had no regrets about letting grand jury members hear from non-credible witnesses.

“Early on I decided that anyone who claimed to have witnessed anything would be presented to the grand jury,” McCulloch said. He added that he would’ve been criticized no matter his decision.

During the interview, McCulloch referenced a woman who claimed to have seen the shooting.

This “lady clearly wasn’t present,” McCulloch said. “She recounted a story right out of the newspaper,” backing up Wilson’s version of events.

The criticism of that witness fits the questions surrounding Sandra McElroy, also known as Witness 40.

McElroy, who’s admitted to using racial slurs and trying to raise money for Wilson, testified that she saw the entire shooting unfold, and that Brown charged the officer shortly before he was killed — a detail that has proven controversial because of conflicting reports.

Investigators picked apart McElroy’s story, saying she could not have left the apartment complex in the way she described.

She also gave conflicting accounts of why she was at the scene of the shooting that day and admitted that she has short-term memory problems from a head-on collision that left her with a traumatic brain injury.

Previously it was not believed that McCulloch would face any legal consequences for his actions to keep Wilson from being tried. Maybe this will change in light of his admission that he used testimony from people who were lying. Buzzfeed pointed out that McCulloch’s use of a witness who “clearly wasn’t present” might also be a violation of both professional ethics and the law:

McCulloch’s acknowledgment that he knew some of the witness accounts were untrue raises ethical questions about his office’s presentation to the grand jury.

According to Missouri Rules of Professional Conduct, RULE 4-3.3, “A lawyer shall not knowingly offer evidence that the lawyer knows to be false.”

The law also says that a lawyer “may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”

“A lawyer should not present testimony that he believes to be false,” Steven Lubet, a law professor at Northwestern University, told BuzzFeed News. “That is especially true in a proceeding that lacks all of the usual safeguards, such as opposing counsel and a judge.”

I’m sure there will be more legal opinions to come regarding McCulloch’s actions.

Following the release of the grand jury decision in Ferguson there have been multiple media reports of other acts of excessive violence by police officers, such as the killing of Eric Garner. You would think that police officers would be more cautious following these negative media reports, but there was yet another incident. The New York Daily News reports:

Internal Affairs is investigating the circumstances of an arrest, captured on video, that shows a plainclothes cop repeatedly punching a teen suspect in the body as three uniformed cops were trying to subdue and handcuff him, police said.

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More Views On The Injustice In Ferguson

Two recent posts (here and here) deal with how a different system of “justice” was applied in Ferguson in order to protect a police officer from facing trial in a situation where anyone else would be tried. This has also been a trend in other parts of the country, with it being very rare for police officers to face criminal charges in shootings. The posts were also cross posted at The Moderate Voice and the first post has quite a lengthy discussion of this issue. (The second post was cross posted there at approximately the same time as this is being posted so I do not know yet whether the discussion will be extended there.)

As information has come out about the proceedings at Ferguson, many others have also expressed similar concerns that the system was abused to protect Darren Wilson from facing a trial in the shooting of Michael Brown despite their being sufficient evidence to establish probable cause. This includes libertarian as well as liberal sites. At Hit and Run, Jacob Sullum wrote that Darren Wilson Got a Private Trial Run by Friendly Prosecutors:

As I noted yesterday, the likelihood that Darren Wilson would have been acquitted if he had faced a homicide charge in connection with the death of Michael Brown does not mean he should not have been indicted. As you go through the evidence that was presented to the grand jury, two things are clear: There is plenty of room for reasonable doubt as to whether Wilson broke the law when he shot and killed Brown, and there is considerable evidence that he did—surely enough to supply probable cause, the standard for charging someone with a crime. St. Louis County Prosecuting Attorney Robert McCulloch managed to obscure the latter point by staging what amounted to a trial behind closed doors—a trial without a judge or an adversarial process. Assuming the jurors were acting in good faith (and there is no reason to think they weren’t), the only explanation for their decision is that they lost sight of the task at hand and considered the evidence as if they were being asked to convict Wilson rather than approve charges that would have led to a real trial.

It is not hard to see how the grand jurors could have made that mistake. McCulloch said he would present all of the evidence collected so far—everything a trial jury would see and hear. The jurors convened on 23 days, hearing testimony that takes up nearly 5,000 pages of transcript, not including the various recorded interviews played for them. Instead of making the case for an indictment, as they ordinarily would do, the prosecutors running the show often seemed to be reinforcing Wilson’s defense, as when they suggested that marijuana-induced psychosis might account for the ferocious attack that Wilson says he suffered at Brown’s hands and for the heedless charge that Wilson says forced him to shoot Brown over and over again.

McCulloch clearly thought an elaborate grand jury process, coupled with public release of all the evidence presented to the jurors, would help keep the peace and mollify critics who feared that Wilson would get away with murder. But a real trial, even one ending in acquittal, would have been much more effective at achieving those goals. A public airing of the evidence, with ample opportunity for advocates on both sides to present and probe it, is what Brown’s family has been demanding all along. McCulloch took extraordinary steps to deny them that trial, thereby reinforcing the impression that the legal system is rigged against young black men and in favor of the white cops who shoot them.

Clive Cook wrote:

A jury may well have found Wilson innocent. Much of the evidence, so far as one can tell, leans in his favor. But there should unquestionably have been a trial. If you ask me, probable cause to indict him for unlawful killing resided in the single word “unarmed” — and that’s to say nothing of the conflicting testimony about whether an already wounded Michael Brown was about to attack Wilson when the fatal shots were fired.

The larger issue — and in this system I see no way to address it — is that in cases such as these, the law-enforcement complex is judging its own conduct. Police and prosecutors seem to get bigger guns and more powers every time policymakers turn their attention to the subject; the trend never seems to go the other way. With this growing and potentially tyrannical power goes the vital necessity of ensuring that officers of the law are held properly to account. And they aren’t. It’s as simple as that.

Jeffrey Toobin discussed how grand juries are used:

In Missouri, as elsewhere, grand juries are known as tools of prosecutors. In the famous words of Sol Wachtler, the former chief judge of the New York Court of Appeals, a prosecutor could persuade a grand jury to “indict a ham sandwich” if he wanted to. This is certainly true, but it is true, too, that grand juries retain at least a nominal independence. They usually do what prosecutors want, but they are not legally required to.

In sending Wilson’s case to the grand jury, McCulloch technically turned over to them the decision about whether to prosecute. By submitting all the evidence to the grand jury, he added to the perception that this process represented an independent evaluation of the evidence. But there is little doubt that he remained largely in control of the process; aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment. The standard for such charges—probable cause, or more probable than not—is generally a very easy hurdle. If McCulloch’s lawyers had simply pared down the evidence to that which incriminated Wilson, they would have easily obtained an indictment.

The grand jury chose not to indict Wilson for any crimes in connection with Brown’s death. In a news conference following the decision, McCulloch laid out the evidence that he believed supported the grand jury’s finding. In making the case for Wilson’s innocence, McCulloch cherry-picked the most exculpatory information from what was assembled before the grand jury. The conclusion may even have been correct; based on a preliminary review of the evidence before the grand jury, it’s not clear to me that a trial jury would have found Wilson guilty beyond a reasonable doubt.

But the goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.

Further coverage from The New Yorker can be found here.

Noam Scheiber also described how St. Louis Prosecutor Bob McCulloch Abused the Grand Jury Process, calling the choice of using the grand jury process to establish Wilson’s innocence” to be deeply unfair:

Why? Because grand juries simply aren’t equipped to adjudicate guilt or innocence. As The New Yorker’s Jeffrey Toobin points out, prosecutors have enormous sway over grand juries. Typically, they cherry pick the evidence that establishes probable cause, helping them obtain indictments in almost every case. But in this case, McCulloch clearly didn’t believe an indictment was deserved. So he used his influence in the opposite directionstacking the deck in favor of a non-indictment. Specifically, he inundated the grand jury with “every scrap of evidence [he] could find,” in Toobin’s words, at which point “the grand jury threw up its hands and said that a crime could not be proved.” [UPDATE: This New York Times story goes even further, showing how McCulloch’s team essentially cherry-picked evidence establishing Wilson’s innocence. It describes how they accepted Wilson’s account at face value, even leading him toward exculpatory statements through their questioning, while going out of their way to point out flaws and contradictions in alternative accounts from other witnesses.]

In effect, McCulloch staged a pre-trial trial in order to vindicate his personal view of Wilson’s innocence. But grand juries simply aren’t the proper forum for holding a trial. The most obvious reason is that they’re not adversarial settings. The prosecutor gets to present his or her view, but there’s no one to present the opposing viewa rather key feature of the criminal justice system. This isn’t a problem when the prosecutor believes the defendant is guilty, since the result is an actual trial. But when the prosecutor stage-manages a grand jury into affirming his view of the defendant’s innocence, that’s it. That’s the only trial we get.

Politically, I understand the advantage of this for McCulloch. He gets to wrap his preference for not indicting Wilson in the legitimacy of a trial-like process, whereas simply declining to indict Wilson without the support of a grand jury would have left him badly exposed. It would have triggered an enormous political backlash, rather than the relatively minor uproar we witnessed Monday night. But as a basic matter of justice, it’s outrageous. As I noted yesterday, the only way to earn the legitimacy of a trial is to actually have a trial, in which both positions are given a fair hearing.

The New York Times placed this in perspective, describing what McCulloch did wrong in this case:

The St. Louis County grand jury’s decision not to indict the white police officer who in August shot and killed Michael Brown, an unarmed black teenager, would have generated widespread anger and disappointment in any case. But the county prosecutor, Robert McCulloch, who is widely viewed in the minority community as being in the pockets of the police, made matters infinitely worse by handling this sensitive investigation in the worst possible way.

First, he refused to step aside in favor of a special prosecutor who could have been appointed by Gov. Jay Nixon of Missouri. He further undermined public confidence by taking a highly unorthodox approach to the grand jury proceeding. Instead of conducting an investigation and then presenting the case and a recommendation of charges to the grand jury, his office shifted its job to the grand jury. It made no recommendation on whether to indict the officer, Darren Wilson, but left it to the jurors to wade through masses of evidence to determine whether there was probable cause to file charges against Officer Wilson for Mr. Brown’s killing.

Under ordinary circumstances, grand jury hearings can be concluded within days. The proceeding in this case lasted an astonishing three months. And since grand jury proceedings are held in secret, the drawn-out process fanned suspicions that Mr. McCulloch was deliberately carrying on a trial out of public view, for the express purpose of exonerating Officer Wilson.

If all this weren’t bad enough, Mr. McCulloch took a reckless approach to announcing the grand jury’s finding. After delaying the announcement all day, he finally made it late in the evening, when darkness had placed law enforcement agencies at a serious disadvantage as they tried to control the angry crowds that had been drawn into the streets by news that the verdict was coming. Mr. McCulloch’s announcement sounded more like a defense of Officer Wilson than a neutral summary of the facts that had led the grand jury to its conclusion.

For the black community of Ferguson, the killing of Michael Brown was the last straw in a long train of abuses that they have suffered daily at the hands of the local police. News accounts have strongly suggested, for example, that the police in St. Louis County’s many municipalities systematically target poor and minority citizens for street and traffic stops — partly to generate fines — which has the effect of both bankrupting and criminalizing whole communities.

In this context, the police are justifiably seen as an alien, occupying force that is synonymous with state-sponsored abuse.

The case resonated across the country — in New York City, Chicago and Oakland — because the killing of young black men by police is a common feature of African-American life and a source of dread for black parents from coast to coast. This point was underscored last month in a grim report by ProPublica, showing that young black males in recent years were at a far greater risk — 21 times greater — of being shot dead by police than young white men. These statistics reflect the fact that many police officers see black men as expendable figures on the urban landscape, not quite human beings.

We get a flavor of this in Officer Wilson’s grand jury testimony, when he describes Michael Brown, as he was being shot, as a soulless behemoth who was “almost bulking up to run through the shots, like it was making him mad that I’m shooting at him.”

Crooks and Liars described How Robert McCulloch Hoodwinked The Ferguson Grand Jury

For the entire proceeding, jurors weighed the evidence in light of a law that was deemed unconstitutional almost 30 years ago. Then they corrected the record at the very end, but by then it was too late.

To me, this invalidates the entire decision. While I believe jurors acted in good faith, the prosecutor did not, and intentionally confused jurors as to the applicable law. Correcting it at the end is not adequate or acceptable.

Unfortunately, there is no way to force Bob McCulloch to prosecute Darren Wilson. But Eric Holder has promised an aggressive investigation of Ferguson police. That’s good, but he might want to broaden that investigation to include St. Louis County prosecutors.

How can anyone believe this Grand Jury proceeding has a shred of integrity? I don’t blame the jurors; I blame the prosecutor.

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More Evidence For A Different System Of Justice For The Police

Yesterday I discussed how the grand jury was used in Ferguson was an example of how justice is different for the police than it is for everyone else.  The Washington Post also reports on unorthodox police practices in handling Darren Wilson after the shooting:

When Ferguson, Mo., police officer Darren Wilson left the scene of the shooting of unarmed teenager Michael Brown, the officer returned to the police station unescorted, washed blood off his hands and placed his recently fired pistol into an evidence bag himself.

Such seemingly un­or­tho­dox forensic practices emerged from the voluminous testimony released in the aftermath of a grand jury decision Monday night not to indict Wilson.

The transcript showed that local officers who interviewed Wilson immediately after the shooting did not tape the conversations and sometimes conducted them with other police personnel present. An investigator with the St. Louis County Medical Examiner’s office testified that he opted not to take measurements at the crime scene

Charles Johnson adds, “Perhaps the most outrageous thing: police never tested Wilson’s gun for Michael Brown’s fingerprints. Since one of the main points of Wilson’s story was that Brown grabbed his gun, why wasn’t this done?”

The National Bar Association has also responded to the decision:

 The National Bar Association is questioning how the Grand Jury, considering the evidence before them, could reach the conclusion that Darren Wilson should not be indicted and tried for the shooting death of Michael Brown. National Bar Association President Pamela J. Meanes expresses her sincere disappointment with the outcome of the Grand Jury’s decision but has made it abundantly clear that the National Bar Association stands firm and will be calling on the U.S. Department of Justice to pursue federal charges against officer Darren Wilson. “We will not rest until Michael Brown and his family has justice” states Pamela Meanes, President of the National Bar Association. 

President Meanes is requesting that the citizens of Ferguson, Missouri not allow this decision to cause an unnecessary uproar in the community that could lead to arrests, injuries or even deaths of innocent people. “I am asking for everyone to remain as calm as possible and to join in solidarity as we continue to support the family of Michael Brown and put our legal plan into full effect” says President Meanes  “I feel the  magnitude of the grand jury’s ruling as Ferguson, Missouri is only minutes from where I reside”, adds President Meanes.

Over the last couple of months, the National Bar Association has  hosted Town Hall meetings informing  attendees of their Fourth Amendment (Search & Seizure) constitutional rights, whether it is legal to record police activity, and how citizens should behave/respond if and when they interface with police officers. “The death of Michael Brown was the last straw and the catalyst for addressing issues of inequality and racial bias in policing, the justice system, and violence against members of minority communities,” states Pamela Meanes.

The family of Michael Brown requested that District Attorney McCullough step aside and allow a special prosecutor be assigned to the investigation to give the community confidence that the grand jury would conduct a complete and thorough investigation into the tragic shooting death of 18 year old Michael Brown. The grand jury’s decision confirms the fear that many expressed months ago — that a fair and impartial investigation would not happen.

“The National Bar Association is adamant about our desire for transformative justice. While we are disappointed with the grand jury’s ruling, we are promoting peace on every street corner around the world. The only way to foster systemic change is to organize, educate, and mobilize. We are imploring everyone to fight against the injustice in Ferguson, Missouri and throughout the United States by banding together and working within the confines of the law,” states President Meanes.

Update: More Views On The Injustice In Ferguson

 

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Two Systems Of Justice: One For Police, One For Everyone Else

The grand jury’s decision in Ferguson not to indict Darren Wilson in the death of Michael Brown demonstrates how we have two systems of justice in the United States. I am not referring only to the differences in treatment based upon race. This is clearly a major factor, but as it has already been discussed at length at many sources I am going instead to highlight another aspect of this problem. The system works different for police officers as opposed to anybody else. Needless to say, blacks are at an even further disadvantage in a case involving blacks and the police.

The grand jury system was originally formulated in an attempt to place a check over the power of prosecutors and protect those who should not be prosecuted. Instead grand juries typically give the prosecutor an indictment when desired in the vast majority of cases. The exception is when a police officer is the one being investigated. In these cases the prosecutor’s office often takes the part of the defense. In a typical grand jury case, Darren Wilson’s side of the story would not have been presented as it was in Ferguson.

FiveThirtyEight has some data on grand jury decisions:

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

Wilson’s case was heard in state court, not federal, so the numbers aren’t directly comparable. Unlike in federal court, most states, including Missouri, allow prosecutors to bring charges via a preliminary hearing in front of a judge instead of through a grand jury indictment. That means many routine cases never go before a grand jury. Still, legal experts agree that, at any level, it is extremely rare for prosecutors to fail to win an indictment.

“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”

Cases involving police shootings, however, appear to be an exception. As my colleague Reuben Fischer-Baum has written, we don’t have good data on officer-involved killings. But newspaperaccountssuggest, grand juries frequently decline to indict law-enforcement officials. A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. Separate research by Bowling Green State University criminologist Philip Stinson has found that officers are rarely charged in on-duty killings, although it didn’t look at grand jury indictments specifically.

If the grand jury system was changed so that the defense case was routinely heard, there might be benefits to this. However, it is not fair when one group of people receive this benefit but others do not. The system was essentially designed to protect the police and deny justice to victims such as Michael Brown.

Think Progress posted the above video on this topic by Phillip Johnson. This also explains how under normal circumstances a grand jury would have found probable cause for an indictment.

This does not necessarily mean that Darren Wison would have been convicted. There was a tremendous amount of evidence to be examined, some of it conflicting, and is possible that Wison might have ultimately been acquitted in a jury trial where the standard is not just probable cause but evidence of guilt beyond reasonable doubt.  There are legitimate questions to be reviewed as to how much discretion to give to police officers who feel the need to use deadly force in self defense versus the degree to which police should be expected to be able to handle an unarmed attacker without resorting to deadly force. The decision as to whether to indict Wilson should have been made by the same process as would have been used if anyone other than a police officer was the accused, followed by a jury trial to examine all the evidence from both sides.

Update: More Evidence For A Different System Of Justice For The Police

Update II: More Views On The Injustice In Ferguson

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A Bad Week Gets Worse: Sixth Circuit Court Upholds Bans On Gay Marriage

As if the news wasn’t bad enough on Tuesday, there was even more bad news this week. U.S. Court of Appeals for the Sixth Circuit overturned rulings against bans on same-sex marriage in Kentucky, Michigan, Ohio, and Tennessee. More on the decision at SCOTUSblog.

This decision runs counter to decisions in  4th, 7th, 9th and 10th circuit courts which struck down bans on same-sex marriage in Virginia, Indiana, Wisconsin, Oklahoma, Utah, Idaho and Nevada. This led to neighboring states also eliminating their bans. Having these contradictory decisions means that the Supreme Court, which previously tried to avoid getting involved, will probably be forced to decide the issue.

The news might not be all bad. Doug Mataconis looked at previous decisions of the Supreme Court justices and believes that the court will rule in favor of allowing same-sex marriage. While there is no guarantee of this happening, if it does turn out this way we might actually have legalization of same-sex marriage nation wide during the current court session, speeding up what appears to be an inevitable trend.

If the Democrats had any guts they would speak out on this issue, questioning how the Republicans who claim to be the party of limited government can justify using the power of government to tell people who they may or may not marry. Of course as we were reminded by how they campaigned in the midterm elections, the Democrats do not have such guts. As the saying goes, we have one party with brains but no balls, and one party with no brains but which does have balls.

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Not Hearing Anything Lately From Republicans About Their Frivolous Suit Against Obama

Remember a few months ago when John Bohner was talking about filing a ridiculous law suit against Barack Obama? Politico points out that, despite the Republican hype, we haven’t heard anything about this suit recently:

House Speaker John Boehner came out swinging hard last June when he announced that his chamber would take President Barack Obama to court. The suit, charging that the president grossly exceeded his constitutional authority by failing to implement portions of the Obamacare law, was billed as an election-season rallying point for aggrieved Republicans. But days before the midterms the House’s legal guns seem to have fallen silent.

Lawyers close to the process said they originally expected the legal challenge to be filed in September but now they don’t expect any action before the elections.

Some attribute the delay to electoral politics — suggesting that Republicans were worried it could rile up the Democratic base — though the GOP is mum on why the suit has yet to be filed.

Whatever the reason, the delay means the core of the suit could effectively be moot before the Obama administration even has to respond to it in court. The case was expected to center on an employer mandate provision that Obama twice delayed but is now set to kick in for many employers on Jan. 1.

Bloomberg says the suit might be more trouble than it is worth for the Republicans:

Part of the problem may lie in the troubled history of the suit. In mid-September, the GOP’s law firm dropped the case over “political pressure,” according to a Republican aide speaking to Politico. That same week, the Seventh Circuit Court of Appeals tossed out a lawsuit similar to the House’s from the Association of American Physicians and Surgeons.

Politically, the lawsuit presents catch-22s for the GOP. First, the party has to choose between upsetting conservatives (some of whom support impeachment) by not suing the president or bewildering the rest of the country by suing the president.

A July CNN/ORC poll found that 65 percent of Americans don’t think the president should be impeached, 57 percent don’t support the lawsuit, and less than half of respondents thought Obama has gone too far with his executive orders. Fifty-six percent of conservatives were in favor of the impeachment, compared to 26 percent of moderates.

The lawsuit was a compromise, but appeasement didn’t really work. The pro-impeachment conservative wing of the party has been given voice by Sarah Palin, who told Breitbart News that “you don’t bring a lawsuit to a gunfight.”

Second, if Boehner had gone through with suing the president before the midterm elections, it might have help Democrats fundraise and motivate the liberal base even more than it already had. The Democratic Congressional Campaign Committee made $7.6 million in the month after the suit was announced, including $2.1 million in one weekend off emails warning of impeachment.

Plus Republicans might be embarrassed if small businessmen realize that the Republican Party is pursuing a lawsuit which seeks to punish Obama for trying to make conversion to the Affordable Care Act easier for small business, as many small business owners had requested. This hardly sounds like where the Republicans should draw the line in the sand against what they claim is tyranny from the Obama administration. Of course they had to settle for this suit as they couldn’t find anything of substance with which to pursue this absurd claim.

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