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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Police Shoot Man In Hollywood

Since the decision not to indict in Ferguson was released it seems like hardly a day goes by in which police shootings are not in the news. I noted this trend yesterday, and today there is a new story–a shooting of a man by police in Hollywood who had a knife in his pocket.

As Think Progress notes, we do not yet know the full details of this situation, but it does appear to be part of a disturbing trend of police escalation of incidents both in Los Angeles and in other cities around the country.

While details of Friday’s shooting are still emerging, officers seemed to have engaged in the same rapid escalation that has been criticized in other recent shootings. In St. Louis this past August, officers shot a man holding a knife less than 20 seconds after arriving at the convenience store where he had allegedly stolen two cans of soda. While police in Los Angeles, St. Louis, and New York City have long been criticized over their deployment of lethal force, Burlington, VT officers had not fired their guns on duty in 16 years when they killed a mentally ill man last November because he was brandishing a shovel.

These clashes occupy a different category of police violence from the killings of unarmed black men that have sparked mass street protest around the country in recent months, such as the barehanded killing of Eric Garner by New York police who applied a prohibited chokehold while the 43-year-old said “I can’t breathe” repeatedly. Protests have also been inflamed by twelve-year-old Tamir Rice, who Cleveland police shot and killed for playing with a toy gun. The officers killed Rice so soon after getting to the scene that the driver of the car wasn’t even out of his cruiser yet. Officer Timothy Loehmann’s record of handling his weapon was so poor that a previous department had forced him to step down.

Los Angeles police are also under scrutiny as the public awaits the release of autopsy results in the LAPD killing of Ezell Ford, an unarmed man who eyewitnesses say was laying on the ground when officers shot him this past summer. Ford was killed two days after officers in Ferguson, MO shot unarmed teenager Michael Brown.

In each case, trained officers escalated the situation, and killed someone who might have been subdued another way. Police killings are notoriously difficult to track and analyze systematically because hundreds of them never get reported to official crime and violence databases maintained by the federal government.

After all the attention paid to such incidents recently, one might think that the police would be trying to avoid the use of lethal force whenever possible. Instead it looks like the police might have picked up upon another lesson we have learned–it is very unlikely for police involved in shootings to be indicted or otherwise disciplined.

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More Killings By Police Under Investigation

This unfortunate trend continues. Following the grand jury decisions against indictments of police officers who killed Michael Brown in Feguson and Eric Garner in New York, a white police officer has shot an unarmed black man in Arizona. The only thing he was found to be carrying was a bottle of Oxycontin.

A grand jury is now being impaneled in Brooklyn to investigate the killing of Akai Gurley, yet another unarmed black man who was killed by police.

A Justice Department investigation found that the Cleveland police were too quick to use deadly force.

The growing distrust between Cleveland police and the communities they serve can be attributed in part to how quickly officers draw their weapons without trying to use words to calm tense situations, according to the U.S. Department of Justice investigation of the Cleveland Division of Police.

In addition to finding that police often fire their weapons recklessly, the report called out police for using deadly force or less lethal force as their first approach rather than a last resort, even in cases where a suspect is mentally disabled.

“We…discovered that officers do not effectively de-escalate situations, either because they do not know how, or because they do not have an adequate understanding of the importance of de-escalating encounters before resorting to force whenever possible,” the report says.

These practices have become routine in a police culture that encourages using force as punishment – a pattern that’s not only illegal but also puts a strain on police-citizen relations, according to the Justice Department.

The law allows police to use deadly force when their lives or the lives of others around them are in danger, but the Justice officials slammed Cleveland police for shooting at or using other means of physical coercion against people who were not a threat.

Why would we expect Cleveland to be any different from what is sure looking like a disturbing national trend?

David Boez of the Cato Institute hopes that incidents such as the killing of Eric Garner lead to an “American Spring,” including protests against not only police killings but other laws opposed by libertarians: “Let’s hope this coming spring brings a wave of police reform in the United States, and also a reconsideration of the high taxes, prohibitions, and nanny-state regulations that are making so many Americans technically criminals and exacerbating police-citizen tensions.”

While liberals might not share libertarian objection to many of these regulations on the same philosophical grounds as libertarians, the fact remains that there are adverse consequences, such as the killing of Eric Garner, when police devote resources to the enforcement of petty offenses. The New York Times also saw this connection:

The Garner killing must lead to major changes in policy, particularly in the use of “broken windows” policing — a strategy in which Officer Pantaleo specialized, according to a report in September by WNYC, which found that he had made hundreds of arrests since joining the force in 2007, leading to at least 259 criminal cases, all but a fraction of those involving petty offenses. The department must find a better way to keep communities safe than aggressively hounding the sellers of loose cigarettes.

And while defenders of the police like to point to thousands of nonfatal misdemeanor arrests as evidence that officers are acting in a way that is reasonable and safe, there can never be a justification for any lethal assault on an unarmed man, no justification for brutality.

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Killings By Police Officers Are Far Too Common In The United States

The injustice at Ferguson remains fresh in our minds as yet another case of a police officer who killed a black is not going to trial. The grand jury has decided against an indictment in the killing of Eric Garner in an illegal chokehold. The New York Times reports:

A Staten Island grand jury voted on Wednesday not to bring criminal charges in the death of Eric Garner, a black man who died after being placed in a chokehold by a white police officer, a decision that triggered outrage by many public officials, spurred protesters to take to the streets and led President Obama to once again vow to help heal the rift that exists between the police and those they serve.

Mayor Bill de Blasio, speaking at a news conference in Staten Island, said that he had been assured by Attorney General Eric Holder that a federal investigation would continue to probe the death and determine whether Mr. Garner’s civil rights were violated.

The grand jury decision was reached after months of testimony, including that provided by the officer who used the chokehold, Daniel Pantaleo. The grand jury reached its decision less than two weeks after a grand jury in Ferguson, Mo., declined to bring charges against a white officer who fatally shot an unarmed black teenager, Michael Brown.

An autopsy by the city’s medical examiner found that Mr. Garner’s death was a homicide resulting from the chokehold and the compression of his chest by police officers.

Video of the event is above in which Eric Garner can be heard saying more than once that he could not breathe.

There has been more interest in the number of killings by police. The Wall Street Journal looked at the statistics and found that they were being under-counted:

When 24-year-old Albert Jermaine Payton wielded a knife in front of the police in this city’s southeast corner, officers opened fire and killed him.

Yet according to national statistics intended to track police killings, Mr. Payton’s death in August 2012 never happened. It is one of hundreds of homicides by law-enforcement agencies between 2007 and 2012 that aren’t included in records kept by the Federal Bureau of Investigation.

A Wall Street Journal analysis of the latest data from 105 of the country’s largest police agencies found more than 550 police killings during those years were missing from the national tally or, in a few dozen cases, not attributed to the agency involved. The result: It is nearly impossible to determine how many people are killed by the police each year…

To analyze the accuracy of the FBI data, the Journal requested internal records on killings by officers from the nation’s 110 largest police departments. One-hundred-five of them provided figures.

Those internal figures show at least 1,800 police killings in those 105 departments between 2007 and 2012, about 45% more than the FBI’s tally for justifiable homicides in those departments’ jurisdictions, which was 1,242, according to the Journal’s analysis. Nearly all police killings are deemed by the departments or other authorities to be justifiable.

The full national scope of the underreporting can’t be quantified. In the period analyzed by the Journal, 753 police entities reported about 2,400 killings by police. The large majority of the nation’s roughly 18,000 law-enforcement agencies didn’t report any.

Paul Waldman, discussing Ferguson, recently compared killings by police in the United States to other countries:

American police kill many, many more citizens than officers in similar countries around the world. The number of people killed by police in many countries in a year is in the single digits. For instance, in Britain (where most officers don’t even carry guns), police fatally shot zero people in 2013 and one person in 2012. Germany has one-quarter the population of the United States, and police there killed only six people in all of 2011. Although official figures put the number killed by American police each year around 400, the true number may be closer to 1,000.

The most common explanation is that since we have so many guns in America, police are under greater threat than other police. Which is true, but American police also kill unarmed people all the time — people who have a knife or a stick, or who are just acting erratically. There are mentally disturbed people in other countries, too, so why is it that police in Germany or France or Britain or Japan manage to deal with these threats without killing the suspect?

This is where we get to the particular American police ideology, which says that any threat to an officer’s safety, even an unlikely one, can and often should be met with deadly force. We see it again and again: Someone is brandishing a knife; the cops arrive; he takes a step toward them, and they fire. Since Brown’s death, at least 14 teenagers have been shot and killed by police; the weapons they were wielding included knives, cars and a power drill, all of which can be obtained by European citizens, at least as far as I know.

In the case of Michael Brown the killing was justified by claims that Brown had grabbed Darren Wilson’s gun (with much of the physical evidence and eye witness testimony putting this claim in question). We can see what happened in the killing of Eric Garner in the video above and there is no sign whatsoever that the police had reason to feel threatened.

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St. Louis Police Oppose Non Violent Protest By Football Players

The controversy over the decision not to indict Darren Wilson extended to football this weekend when five of the St. Louis Rams plays entered the stadium with their hands raised. This was in reference to the eye witnesses who testified before the grand jury that Michael Brown had his hands raised, attempting to surrender, when he was shot to death. These players were engaging in their right to freedom of expression in a peaceful manner.

While I can understand that the police would not be happy to see this, I am disturbed by their reaction. ESPN reports:

The St. Louis Police Officers Association called for the players involved to be disciplined and for the Rams and the NFL to deliver a “very public apology,” its statement read in part.

“I know that there are those that will say that these players are simply exercising their First Amendment rights,” SLPOA business manager Jeff Roorda said in the statement. “Well, I’ve got news for people who think that way: Cops have First Amendment rights too, and we plan to exercise ours. I’d remind the NFL and their players that it is not the violent thugs burning down buildings that buy their advertiser’s products. It’s cops and the good people of St. Louis and other NFL towns that do. Somebody needs to throw a flag on this play. If it’s not the NFL and the Rams, then it’ll be cops and their supporters.”

It is understandable for anyone to be upset violent protests but this was a totally peaceful expression of their views. The SLPOA has the idea of the First Amendment totally backwards if they think that the First Amendment was designed for the police to try to shut down protests. I haven’t heard such a confused interpretation of the First Amendment since Sarah Palin expressed the belief it was to protect her from questioning by the media.

While I don’t condone those who are violent, I am also disturbed by the implicit idea of separating the good (you can almost hear white) people of St. Louis and other NFL towns from those (black) people who are protesting, not all of whom are protesting violently. Those football players certainly were engaged in non-violent protest.

The SLPOA took  advantage of unfair nature of the grand jury proceedings to falsely claim that this exonerated Wilson:

“SLPOA Business Manager Jeff Roorda said, “now that the evidence is in and Officer Wilson’s account has been verified by physical and ballistic evidence as well as eye-witness testimony, which led the grand jury to conclude that no probable cause existed that Wilson engaged in any wrongdoing, it is unthinkable that hometown athletes would so publicly perpetuate a narrative that has been disproven over-and-over again.”

The argument that there was probable cause to indict Wilson, despite the ruling of the grand jury, was never disproven. Both physical evidence and eye witnesses contradict Wilson’s statement. As I discussed here and here, the grand jury proceedings were highly irregular, with the prosecutor essentially acting as the defense, leading the grand jury to come to a decision not to indict. There were also irregularities in the collection of evidence after the shooting.

It is shocking that it has suddenly become controversial in this country to insist that a police officer who shot an unarmed person, who some eye witnesses say was trying to surrender, should have to face cross examination when giving his testimony. There is an incestuous relationship between the police and prosecutor’s office with the prosecutor seeing the police on his side, desiring to protect them. Grand juries are generally used to present the case for indictment, not to present the defense case. Why is it that conservatives who generally distrust the government are suddenly showing complete trust when an unarmed black kid is killed, despite clear abuses of the system by the prosecutor? There is certainly room for disagreement about Wilson’s guilt based upon the evidence presented, both supporting and contradicting Wilson,  but this should be dealt with under normal trial rules, with an adversarial proceeding including  cross examination of the witnesses, not a sham proceeding rigged to exonerate Wilson.

It is only understandable that people will be driven to protest considering the irregularities in this case. This includes football players, who also have the right to freedom of expression. Fortunately the NFL understood this and Brian McCarthy, the NFL’s VP of communications, responded to the SLPOA with this statement, declining to initiate disciplinary action against the players:  “We respect and understand the concerns of all individuals who have expressed views on this tragic situation.”

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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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Wisconsin Man Files Suit After Police Arrest Him For Calling Them Racists On Facebook

This case is something completely different yet fits in with the previous two posts (here and here) which deal with abuse of police powers. A man from Wisconsin is filing suit alleging that he was arrested for comments posted on Facebook accusing policemen of racism. The StarTribune reports:

A man who got arrested after he posted Facebook comments calling a southwestern Wisconsin police department racist has filed a federal lawsuit alleging one of the agency’s officers violated his constitutional rights.

Thomas G. Smith posted profanity-laced comments on Facebook that called police officers in Arena racists in July 2012. He posted the remarks in response to a police Facebook posting several days earlier thanking community members for helping detain two black juveniles who were fleeing officers.

According to the lawsuit filed Monday, an officer named Nicholas Stroik saw Smith’s comments and deleted them, along with comments from two other people who accused police of targeting black people.

Police then called Smith, who was living in Arena at the time, and asked if he had posted the remarks attributed to him. He told officers he wrote the comments and he meant them. Later that night officers arrested him at his home and took him to jail, the lawsuit said.

Prosecutors later charged him with disorderly conduct and unlawful use of computerized communications. They contended his comments amounted to fighting words, defined by the U.S. Supreme Court as utterances that have nothing to do with the exchange of ideas and can incite an immediate breach of the peace.

A jury convicted him and he was sentenced to probation and community service. A state appellate judge, however, tossed his convictions out in July, ruling that the fighting words doctrine doesn’t apply when the speaker and listener aren’t in close physical proximity and that Smith’s comments amounted to protected free speech under the U.S. Constitution.

The suit seeks unspecified damages and attorney fees from Nicholas Stroik and from the Village of Arena for failing to properly train Stroik on the U.S. Constitution.

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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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Republican Minority Blocks Bill To Curtail NSA; Democrats To Take Over Role Of Blocking What They Oppose

Not very long ago it was common for bipartisan coalitions to accomplish things in Congress. That was largely before the current realignment in which Democratic southern conservatives have either joined the Republicans or been voted out of office, and Republican moderates and liberals have been driven away. Theoretically even a totally conservative Republican Party might have members finding common ground with some Democrats at times.  Traditionally there have been some conservative Republicans who have been strong advocates of civil liberties.

Curtailing NSA surveillance would seem to be an area where liberal Democrats and some conservative Republicans might work together. In our bizarre system where a majority does not rule and sixty votes are needed in the Senate,Patrick Leahy’s bill to end the NSA’s bulk data collection died due to only receiving a 58 to 42 majority. This died due to solid Republican opposition, led by Mitch McConnell who felt the bill went to far, and Rand Paul who rationalized voting with the rest of the Republicans by saying the bill did not go far enough.

Libertarians at Reason’s Hit & Run blog were disappointed in Paul, writing that, “Paul and the rest of his fellow citizens may well come to rue the day that he allowed the perfect to get in the way of the merely better.” Regardless of his justifications, Rand Paul has shown that he cannot be counted upon in promoting civil liberties issues. I fear that as Rand Paul tries to position himself as a serious contender for the presidential nomination, he will increasingly align himself with McConnell and become indistinguishable from other Republicans from the authoritarian right. I have often pointed out how his father, Ron Paul, was also hardly the defender of liberty which his fans made him out to be.

There is some small consolation that the Republican minority which has concentrated on blocking Democratic legislation will now replaced by a Democratic minority which can also act to block the disastrous Republican agenda. In describing the Democrats who blocked the Keystone XL pipeline, Politco reported on what they are calling the “hell no” caucus:

..red-state Democrats like Mark Pryor of Arkansas and Mark Begich of Alaska are on their way out, and liberals like Jeff Merkley, Bernie Sanders and Sheldon Whitehouse — with Elizabeth Warren leading the way on messaging — may cause as many headaches for Senate Republicans as tea partyers caused Democrats in the past four years…

Asked if he could ever envision himself performing a Rand Paul-style talking filibuster in the Republican Senate, Whitehouse of Rhode Island replied: “Oh, of course. We will have more tools in the minority than we had in the majority.”

Progressives are girding for battle with Republicans over campaign finance law, consumer protections and women’s health care. But the early battle lines appear increasingly drawn around environmental policy, where Democratic centrists may defect from leadership in next year’s Senate and help Republicans pass legislation strongly opposed by liberal senators…

Even as they vow to fight Republicans at every turn on issues that fundamentally divide liberals and conservatives, left-leaning Democrats insist that they will not do so seeking retaliation against a Republican minority that stymied their economic, environmental and social priorities for so long with filibusters and delay. Those days, they insist, are gone — leaving liberals to somehow find a balance between fighting for their convictions and not drawing the same charges of obstruction that have dominated Democratic messaging for years.

“The best news about a Republican majority in the Senate is that the Republican minority is now gone,” Whitehouse said. “They were just a god-awful minority.”

Maybe this will free up liberal Democrats to more strongly articulate their views on the issues, while allowing more people to see what the Republican agenda really is.

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