On Ferguson

This is an open thread to discuss Ferguson, but I’d ask anyone participating to please:

1) Watch the video.
2) Don’t be a jerk.

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103 Responses to On Ferguson

  1. 1
    Susan says:

    OK I watched it. Mostly about the riots, which is a complicated and thorny topic.

    This will not be a popular opinion (and I have no intention of getting into an argument here over this), I have no data to suggest that the Grand Jury members did not do their best to bring out a just result in a difficult situation, except the assumption that a white policeman in this situation must be wrong, and a black person must be right.

  2. 2
    Myca says:

    I have no data to suggest that the Grand Jury members did not do their best to bring out a just result in a difficult situation

    I don’t have any data to indicate that either. I’ve not seen much opprobrium pointed at the grand jury members, though, but I’ve seen plenty pointed at the DA, who totally deserves every bit of it for stacking the deck against an indictment.

    except the assumption that a white policeman in this situation must be wrong, and a black person must be right.

    Dude. Did you not read request #2 above?

    —Myca

  3. 3
    Harlequin says:

    So far, the most succinct response I’ve seen to the grand jury things has been this tweet:

    When Darren Wilson says he saw Mike Brown as “a demon,” the problem isn’t with his eyes, it’s with what America told him demons look like.

    As far as the rioting goes, this collection of images is, I think, worth looking through. (There have been several of these running around lately, that’s just the first one I saw…)

  4. 4
    kate says:

    I second Myca. The problem here was with the prosecution, not the jury. The role of judges and juries is to be impartial. The role of defense attorneys is to do everything in their power to get the accused acquitted. Once they decide to pursue a case, the role of prosecutors is to do everything in their power to get the accused indicted/convicted on behalf of victims. Bob Mcculloch, at best, tried to be impartial. At worst, he may have acted to defend Wilson. He did not play the role designated for him. With no one in that role, the system could not function as designed. There was no one there actively advocating for the victim. As a result, the whole process is suspect.

  5. 5
    JutGory says:

    Kate @ 4:

    Once they decide to pursue a case, the role of prosecutors is to do everything in their power to get the accused indicted/convicted on behalf of victims

    That is simply not true. Missouri appears to have adopted the Model Rules of Professional Ethics. The applicable rule states that a prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” The comment to the Rule explicitly states that “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” That is not to say that they can’t be assholes. Some bring cases they should not bring (i.e. cases I would not bring).

    And, getting further inside baseball, the ABA’s Standards on the Prosecution Function state that “The duty of the prosecutor is to seek justice, not merely to convict.” With respect to grand juries, the standards state that “No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense” and “A prosecutor should recommend that the grand jury not indict if he or she believes the evidence presented does not warrant an indictment under governing law.”

    -Jut

  6. 6
    Nancy Lebovitz says:

    I haven’t been able to find it again, but I saw a rant about a small number of people (some of them are connected to each other) who show up to riot at demonstrations– the claim was that this has been a problem for quite a few years.

    Does anyone have information and/or citations about this?

  7. 7
    Ruchama says:

    I don’t have any information, but I’ve definitely heard about it happening before. All third-hand rumors, though.

  8. 8
    Susan says:

    I don’t have any facts on this, but I am suspicious of the “outside agitators!” argument, that those who protest are sort of a traveling team of trouble-makers. (That does not mean it isn’t true, all it means is, I’d need some hard evidence before buying it.)

    I am remembering that the same argument was made back in the 1960’s about MLK’s marches in Mississippi and elsewhere. As though all the blacks in the South were perfectly content with their situation before (“Communist”) outsiders came in to stir them up.

  9. 9
    Nancy Lebovitz says:

    Susan, fair enough. I would bet on a combination of outside agitators and more or less local rioters who aren’t necessarily from the neighborhood that gets damaged.

  10. 10
    Susan says:

    I am wondering whether the origin and/or residence of demonstrators might be determined at least to some extent by arrest records. Still, if the wrong complained of is at bottom not this particular incdent, but racism in general, “outsiders” should be entitled to show up too.

  11. 11
    Nancy Lebovitz says:

    I should have said rioters from elsewhere rather than outside agitators in my previous comment.

  12. 12
    Harlequin says:

    the ABA’s Standards on the Prosecution Function state that “The duty of the prosecutor is to seek justice, not merely to convict.” With respect to grand juries, the standards state that “No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense”

    A question for the legal folk round these parts: how does that square with this quote from Scalia that’s been making the rounds?

    neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

    (I guess I’m asking about the difference between exculpatory evidence and evidence that negates/mitigates the offense. Or is this a difference between what should be done ethically and what must be done legally?)

    In any case, I think it’s clear that the treatment Wilson received was different than the treatment almost any other defendant would have received. (That’s not specific to this case–the numbers appear to say that this is true for any police defendant.)

  13. 13
    Kate says:

    Jut Gory,
    Sorry, I was really not clear and made a few leaps. In my mind:

    “once they decide to pursue a case” = when they decide to bring it to a grand jury/jury = they have decided there is probable cause

    “within their power” = legally within their power = withholding evidence is not within their power

    “A prosecutor should recommend that the grand jury not indict if he or she believes the evidence presented does not warrant an indictment under governing law.”

    Exactly. If Mcculloch didn’t think there was probable cause, he should have advised the grand jury not to indict. Instead, he turned over the decision concerning which charges to bring to the grand jury. In the vast majority of cases, this is a decision made by the prosecutor. I know it is not totally unprecedented, but it is highly unusual. Conducting such a high profile, emotionally charged case in an unusual way created the impression of impropriety.

  14. 14
    JutGory says:

    Harlequin @ 12,
    I do not know the context of that Scalia quote, but I think he is saying that Wilson does not have the RIGHT to testify or the RIGHT to have exculpatory evidence presented. All of that is within the sole discretion of the prosecutor. It is not that it can’t be presented, but he has no right to have it presented.

    Does that make sense?
    -Jut

  15. 15
    gin-and-whiskey says:

    I am not entirely surprised that the grand jury reached the verdict they did.

    I don’t think it was necessarily the correct verdict, since the bar for a grand jury proceeding is very low (“probable cause” is not a finding of guilt, but merely a finding that there is evidence enough to proceed to trial. It is a MUCH MUCH lower standard than “beyond a reasonable doubt.”) But I have not spent the necessary hours reviewing the transcript–and in any case, a transcript doesn’t capture things like tone, demeanor, etc.

    But the prosecutor’s actions were really bizarre. It may not be apparent to most of the american public, but this just isn’t done. This post by Scott Greenfield explains (a bit) why this is so strange, in a way which may make more sense to laypeople.

  16. 16
    Pesho says:

    On the pictures of white idiots rioting:
    1) Hardly news. I’m originally from a part of Europe where you will, maybe, find one black person amongst ten thousands. Scenes like this are not uncommon, and would be probably even more common if our police were less willing to use their batons (guns, no, but batons, oh yes)
    2) The captions for the first two photos are factually incorrect. I would not be surprised if the rest are as well.

  17. 17
    Ruchama says:

    The captions for the first two photos are factually incorrect. I would not be surprised if the rest are as well.

    What’s incorrect about them? (I recognized several of the other photos, and know that those ones have accurate captions, but I don’t know much about the context of those first two.)

  18. 18
    JutGory says:

    g&w,
    Yes, it is a low standard. I think it is even lower than a preponderance of the evidence (though I might be wrong about that).

    However, while I would agree that the prosecutor’s actions were unorthodox, I would not describe them as bizarre. As the article you referenced points out, if he did not believe there was probable cause, he could have simply chosen not to prosecute. I think that would have been a bad idea. Presenting the case to a grand jury did 2 things: 1) it covered his ass by 2) taking the final decision out of his hands. If they indicted, he could say, “hey, the jury gave me an indictment and I need to prosecute” and if they did not indict, he could say “hey, they heard all of the evidence and they were not convinced.” Oh yeah, that is what he DID say. Either way, his hands are “clean.”

    Now, what is strange about the article you cited is that the guy is complaining that the grand jury is not an adversarial proceeding. That is the argument the DEFENDANT typically makes when the prosecutor only present evidence indicative of guilt. This notion gets flipped on its head in your article because one has to ask, “which viewpoint is adverse to the state?” Whose side was not heard?

    I think the article also makes a mistake by saying that it is only at trial that all of the evidence comes. Typically, yes. But, if you have a prosecutor that does not believe there is a crime there, there is going to be evidence not favorable to the State. Unless you believe that a police shooting is ipso facto probable cause you are probably going to be presenting some excupatory evidence.

    Here, where some witnesses apparently recanted or changed their statements, the prosecution probably has to deal with rules about suborning perjury. It would be hard not to present evidence of the three autopsies. And, if the jury is allowed to ask questions of the witnesses, you can be sure the issue of self-defense is likely to come up. Knowing that that defense is out there, is it better to confront it head-on at the outset, instead of getting an indictment when you think you will have a loser at trial? That is a judgment call, and some people don’t like the prosecutor’s judgment.

    I would agree with the article though where it criticized the statement that a close call goes to the Defendant. A prosecutor could take that position, but that is a better attitude post-indictment. Definitely at trial the close call goes to the Defendant. However, if he did not think there was probable cause, i suppose it is one way to persuade the jury.

    Parting thought: if we believe that the prosuctor’s role is to persuade the grand jury to adopt the prosecutor’s view of the facts (“That ham sandwich is GUILTY!”), he did exactly what he was supposed to do: he conviced the grand jury that there was not a proper basis for charging Wilson. Again, unorthodox, but not bizarre.

    -Jut

  19. 19
    Myca says:

    I am not entirely surprised that the grand jury reached the verdict they did.

    Me neither. Jay Smooth, from the video:

    “There is nothing more exhausting or more inhumane than Black America’s eternal cycle of being shocked but not surprised.”

    I don’t think it was necessarily the correct verdict, since the bar for a grand jury proceeding is very low (“probable cause” is not a finding of guilt, but merely a finding that there is evidence enough to proceed to trial. It is a MUCH MUCH lower standard than “beyond a reasonable doubt.”)

    Yes. From fivethirtyeight.com:

    “U.S. attorneys prosecuted 162,000 cases in 2010, the most recent year for which we have data. Grand juries declined to return in indictment in 11 of them.”

    That’s less than 0.01 percent of the time.

    —Myca

  20. 20
    Moxon Ivery says:

    The line that people protesting against injustice are actually members of some sinister, poorly-explained group of nihilist provocateurs goes at least as far back as the French Revolution. It has been used to explain away disturbances in Tianemen Square, the Prague Spring, Weimar Germany and Fascist Italy. I’m extraordinarily sceptical.

  21. 21
    Myca says:

    So it seems like one question here is how often this D. A. (or indeed, prosecutors in general) exercises that judgment. How often is the accused asked to speak in his own defense to the Grand Jury? How often does the D. A. make the defense’s case for them?

    Because 11 out of 162,000 does not seem to indicate that this sort of thing is routine.

    Indeed, the routine experience of most of us who are familiar with the criminal justice system is that the prosecutor presents his best case to the grand jury, and that the place for a vigorous defense is at trial.

    Being a little concerned when special courtesies are extended to cops who shoot black kids, but not to the general public, is not unreasonable. I wonder how many black men would not now be in jail if they’d been extended these same courtesies.

    —Myca

  22. 22
    brian says:

    I haven’t had time to look myself but I am surprised that no one in any media I follow has dug up the registered voter to citizen / voter turn out numbers. Any time a local government is fairly blatant about not giving a shit about the citizens, the first question I ask is how do they keep getting elected?

    Riots are fun but at least vote a few times first. But I worship frank capra, what do I know.

  23. 23
    Harlequin says:

    brian, this has little to do with voting and lots to do with the bizarre structure of the St Louis suburbs. There are many small municipalities, and the population turnover *between* municipalities is large. Basically, Ferguson went from majority white to majority black very quickly (here’s one article that talks about this, there are others), and the power structures already in place in the town have been much slower to change.

  24. 24
    Harlequin says:

    So it seems like one question here is how often this D. A. (or indeed, prosecutors in general) exercises that judgment. How often is the accused asked to speak in his own defense to the Grand Jury? How often does the D. A. make the defense’s case for them?

    Because 11 out of 162,000 does not seem to indicate that this sort of thing is routine.

    I can’t find the citation for it now (anybody know where it is?) but somebody tried to look for an analogue to the 11 out of 162,000 for grand jury investigations of police officers, and found that there was only one indictment out of the 80+ cases they looked at.

    Jut, thanks for the clarification.

  25. 25
    brian says:

    I will have to check it out after my 6pm class, thanks. My bias is always towards civic engagement first THEN burn stuff if it fails. So if they were slow to respond even after say a 75 percent voter turnout that means more than if it was 25 percent. My former home town has a mayor that was elected by about ten percent of eligible voters. Part of why it’s a rathole, the residents aren’t citizens.

  26. 26
    Myca says:

    My bias is always towards civic engagement first THEN burn stuff if it fails.

    Things like this are a negative feedback loop. People are discouraged from participating in the system when they are convinced that they system does not and will never represent them.

    I mean in order to put your faith in American institutions, those institutions have to sometimes justify that faith.

    Upthread, you mention that you worship Frank Capra. I like his stuff a lot too. But here’s the thing, man – middle class white people aren’t as civically engaged as they ought to be. And they don’t have slavery, Jim Crow, racist housing policies, stop-and-frisk, mandatory minimums, predatory policing, racist drug laws, etc, to deal with.

    They’ve got a system that’s been, historically, pretty good at addressing their concerns.

    And yet.

    So it’s not that I disagree. Of course I agree. Yay civic engagement! But you have to understand why that attitude might not be widespread.

    —Myca

  27. 27
    Nancy Lebovitz says:

    Moxon, the thing I’d heard was that when people try to have a peaceful demonstration, a handful of rioters show up and cause a lot of damage. That’s what I’m trying to find out about.

  28. 28
    closetpuritan says:

    Still, if the wrong complained of is at bottom not this particular incdent, but racism in general, “outsiders” should be entitled to show up too.

    Sure, but they should give a bit more thought to how they would feel if it was their community being burned. I don’t think much of anyone is objecting to them merely showing up.

    That said, while it makes sense that people with less investment in the community would be more willing to destroy things, the impulse to blame people from away rather than members of one’s own community is part of human nature, so I’m not sure what I believe about that.

  29. 29
    Myca says:

    I can’t find the citation for it now (anybody know where it is?) but somebody tried to look for an analogue to the 11 out of 162,000 for grand jury investigations of police officers, and found that there was only one indictment out of the 80+ cases they looked at.

    From that same fivethirtyeight.com article:

    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.

    —Myca

  30. 30
    Ampersand says:

    The Scalia quote comes from the Supreme Court case US vs Williams, which held (quoting the case’s syllabus):

    [R]equiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory body that sits to assess whether there is adequate basis for bringing a criminal charge into an adjudicatory body that sits to determine guilt or innocence. Because it has always been thought sufficient for the grand jury to hear only the prosecutor’s side, and, consequently that the suspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present such evidence.

    The ABA standards that Jut partly quoted go on to admit that their standards have no legal weight at all. The prosecutor may have such a duty in the eyes of the ABA, but not in the eyes of the law.

    It’s not illegal for a prosecutor to decide to present exculpatory evidence to a grand jury. But – especially taken to an extreme, as happened in Ferguson – it’s a perversion of the system, which goes against how the system is designed to work. The Grand Jury is supposed to be a check against a prosecutor pressing charges without probable cause; it is NOT supposed to weigh evidence for and against guilt.

    And the reason for that is simple: There are supposed to be advocates for two sides in the courtroom. One side representing the state and seeking justice for Michael Brown, and another side representing Darren Wilson. When a prosecutor turns a Grand Jury into a show trial, as happened here, the effect was that only one side – the pro-Wilson side – had an advocate representing its interest in the trial. This is indefensible for anyone who believes in the rule of law.

  31. 31
    JutGory says:

    My a @ 21: “Because 11 out of 162,000 does not seem to indicate that this sort of thing is routine.”

    Don’t get fooled by the numbers. What do those numbers mean? I went to dinner at my wife’s aunt’s house last week and she said she was sitting on a grand jury for her county. She told me, which I did not know, that there is a rule in my state that all First Degree Murders (I think it was just First Degree) had to proceed by grand jury. I have not done any of those sorts of cases so this was news to me. By, if true, that skews the numbers.

    Another thing that skews the numbers is that police are licensed to use force. Not like James Bond, “Licensed to Kill,” but sort of like that. Neither you nor I have license to use force against a fellow citizen. However, an exception to that rule is that we have the right to use force in defense of ourselves or other people (think Zimmerman’s use of force against Martin as an exception to the rule).

    Police are different. They have a general right to use force. The question in this case would be a matter of degree, not of kind. So, Wilson had a general right to use force against Brown, but the question is the appropriate level of force. You characterize this as a “courtesy,” and I think that is the wrong way to phrase it. Cops really fit into a different category; self-defense case create different problems. So, when you cite 11 out of 162,000, those numbers really need scrutiny. If all of those 11 were cops, and only 11 cops are in those 162,000, that would be significant. Then, you have to look at the type of crime, etc. That can skew the numbers.

    Bottom line: I would be skeptical.

    -Jut

  32. 32
    brian says:

    Myca, you touched on about 3 topics dear to my heart. Are you familiar with the theories behind the “institutionalization / prisonization ” mentality and how hard is to break out of?

  33. 33
    Ampersand says:

    There were inconsistencies in witness testimonies on both “sides” – including, by the way, in Wilson’s versions of the story.

    One example: Wilson very clearly said that when he fired his gun, Brown’s right hand was on top of the gun (in his statement the day after the shooting, Wilson said that his first two attempts at firing the gun failed because Brown’s hand physically blocked the gun’s mechanism). So Brown wasn’t just holding the bullet end of the barrel – he was holding the top of the gun. But the MA said that the injury on Brown’s right thumb shows that Brown’s hand was six or eight inches in front of the gun when the gun was fired.

    Now, I can think of a few plausible explanations for that (not least of which is, memory is not always perfect, especially in fast-moving, stressful situations like a fight). I bet you can, too. But no one ever even asked the question of Wilson at the show trial. No skeptical advocate ever attempted to point out inconsistencies in Wilson’s narrative.

    Only witnesses whose stories didn’t help Wilson were questioned skeptically by prosecutors; contradictions in witnesses who seemed to help Wilson, including Wilson himself, were never explored at all. But they did ask Wilson asked hardball, piercing questions such as “You felt like your life was in jeopardy?” and “Use of deadly force was justified at that point in your opinion?”

    Does anyone believe that a trial in which only the witnesses on one side are ever asked hard questions, while witnesses on the other side get nothing but softball questions, is fair?

    I don’t believe it’s true that all the testimony that contradicted Wilson’s account also contradicted the physical evidence, or their own earlier testimony, in important ways. But that’s besides the point, because we really can’t know at all when only half the evidence has been examined in an adversarial way, while the other half of the evidence was accepted unskeptically.

    In effect, they turned a Grand Jury proceeding into a show trial in which only one side – the pro-Wilson side – had lawyers in the room and got to ask questions. The conclusions that emerge from a show trial can’t be relied upon, nor should citizens be expected to accept a show trial as a substitute for justice.

    Suppose that Brown had killed Wilson with his Demon Hulk Hogan powers. Does anyone think there would have been a months-long Grand Jury proceeding, pretending to examine all evidence, in which only lawyers on Brown’s side were allowed to make arguments and ask questions? Or would they have had the usual short proceeding, in which the prosecutor presented his best evidence for probable cause in a couple of hours, and the Grand Jury voted based on that evidence? (Or skipped the Grand Jury altogether?)

    Wilson got special treatment – treatment that no black kid would ever get, treatment that no murderer of a white cop would ever get. How can that possibly be fair?

    Several people have left comments saying they agree or don’t agree with the grand jury’s ruling. That’s not the point.It was a show trial, and regardless of what you think of the outcome, show trials are a bad thing.

    What should have happened is that the prosecutor should have presented the state’s best case and evidence to the grand jury. The grand jury should have voted based on that. Then, IF there was an indictment, there should have been a trial in which both sides were given the chance to present evidence and to question testimony. (Alternatively, the prosecutor could have just made a decision without the grand jury, and suffered the political consequences of that. Public officials do not have any right to avoid political consequences for their decisions.)

    What happened was an ad hoc perversion of the system, of a form that I can’t recall ever seeing before in the US, in which we had a show trial designed to fool the public into thinking an actual trial had taken place. Whether or not I agree with the grand jury’s decision, the process was corrupt and wrong.

  34. 34
    Ampersand says:

    Jut: The fact that police are entrusted with legal use of force means that we should hold them to high standards, not that we should hold show trials designed to get them off.

  35. 35
    Myca says:

    JutGory:

    Bottom line: I would be skeptical.

    Here’s the thing. We’re not talking about a small discrepancy. You say that First Degree Murder charges have to proceed by grand jury, and that might skew the numbers? Okay, well, nationwide in 2010, there were 12,996 murders.

    So let’s discount those out of the total, taking it down to 11 versus 149,004.

    Actually, you know what? Let’s do it again – 11 versus 136,008.

    The way I’ve had the standard of evidence for the grand jury explained to me is that it’s a ‘plausibility’ standard, rather than a ‘beyond a reasonable doubt’ or ‘balance of the evidence’ standard. That is, “is it plausible that there may have been a crime here that requires a trial?”

    I hope you’ll agree that I’m being pretty generous. I’ve taken all murders for 2010 off the table, not just first degree murders. And I’ve done it twice.

    And it’s still overwhelmingly likely that a prosecutor will get an indictment if he wants one. It’s now 0.008% likely for the grand jury to fail to indict, as opposed to the 0.006% from before. It’s just not done.

    As I said before, I’d be interested in knowing in how many other cases nationwide the DA presented the defense’s case for them, and in how many other cases nationwide the DA allowed the accused to speak to the grand jury in their own defense. This was bizarre.

    —Myca

  36. 36
    Myca says:

    Ampersand:

    Wilson got special treatment – treatment that no black kid would ever get, treatment that no murderer of a white cop would ever get. How can that possibly be fair?

    Bingo. Yes. Exactly.

    This, BTW, is also the answer to the question, “aren’t you liberals in favor of strong protection for defendants?” And yes, we are, but we’re not in favor of “strong protections for white defendants only” or “strong protection for cop defendants only.”

    Call me when black kids arrested on drug charges have the DA acting as their advocate, and then we’ll talk.

    —Myca

  37. 37
    JutGory says:

    Amp @ 34: “Jut: The fact that police are entrusted with legal use of force means that we should hold them to high standards, not that we should hold show trials designed to get them off.”

    Sure, and I have little problem with that. Grace may be able to weigh in, but it seems like police can get suspended (with pay) just for firing their gun while on duty. I am fine with all police shootings being submitted to a grand jury by a non-local prosecutor (this guys unwillingness to recuse himself irked me, so why not just make it a rule that you need to accept). I would just disagree with you, if your position is that police are NOT held to high standards.

    Myca @ 35: let me be clear. No, MY state has procedures about who gets indicted by a grand jury. Other states could be different. That difference is important (at least to me), because it introduces a potential variable into any analysis of the number. My point was that such differences could skew the numbers. For instance, if my state requires a grand jury for first degree murder cases, few police shootings would show up in that pool (is anyone suggesting that Wilson was out “hunting” blacks with premeditation. Most police shootings will fall further down the spectrum.)

    I have no idea where your 162,000 came from (though I have heard that number from other sources). I have read the classic book, “How to lie with statistics.” I am not suggesting that YOU are lying, but I would really want to know what lies behind those numbers. What types of cases make up the 162,000? What about the 11 that were not indicted? Has this prosecutor EVER prosecuted a cop for shooting someone (if this is his only case like this, it could easily be construed as an outlier; but if he indicted 10 black cops for shooting white guys, without a grand jury, I would agree that that seems unusual, given this context).

    I understand that some people do not like what happened, but I am not prepared to say this prosecutor did something wrong (though, if it were me, I probably would have happily recused myself for someone else; it is just that a lot of prosecutors are full of themselves and can’t give up control. However, every time I have seen a Judge come out and say that they are willing to recuse themselves based upon an appearance of impropriety (knowing the lawyer, or going to law school with the lawyer), most lawyers do not ask for recusal because the Judge Has volunteered to recuse. If I have any criticism of this prosecutor’s judgment, it would have been that he did not go to the State Attorney General and ask to be replaced.

    -Jut

  38. 38
    Pete Patriot says:

    You know, the charitable interpretation of this is that most grand jury cases result in indictment because prosecutors, quite sensible, don’t waste their time until they’ve a case strong enough to get through. Mcculloch deliberately sent a weak case through because it allowed a jury investigation and publication of the evidence.

  39. 39
    brian says:

    Myca –

    https://www.ncjrs.gov/App/publications/abstract.aspx?ID=244714

    Good article on what happens to people when you hammer away at them psychologically long enough, I used it for a paper a while ago. I want to adapt some of it for ideas to help people who feel isolated from society because their local gvt. doesn’t give a shit about them. The thesis of the paper was that sociologically, urban PTSD, conditioned helplessness and hopelessness and generalized oppression mixed with the Crab Mentality was creating mass mental prisonization in the working class. (I was waaaay off on a tangent that year.)

    The article on Ferguson and surrounding townships was interesting, it’s “blockbusting” taken to an insane degree. Though all those micro-townships are an interesting vulnerability too. Any ONE of them could be hijacked and conquered by anyone with enough voters on board. It would be a mix of the board game RISK and The Battle of Aspen updated. Register voters in adjoining micro-townships, merge them, and expand every election cycle. (Holy crap, a Ferguson inspired political board game…)

    http://en.wikipedia.org/wiki/Crab_mentality
    http://en.wikipedia.org/wiki/The_Battle_of_Aspen

  40. 40
    Kohai says:

    JutGory @37,

    I’ve seen the links shared by g-and-w and Myca above, and I find them pretty persuasive. You don’t. Which is understandable; it’s good to be skeptical.

    The thing is, one reason I find them so persuasive is I have some familiarity reading about grand juries and police misconduct. I’ve followed (for example) Ken White from popehat.com and Radley Balko for a few years, both of whom I respect immensely. My understanding from reading them (and others) has been that grand juries are highly deferential to prosecutors and are apt to return with indictments, even when the evidence is extremely weak. Sol Wachtler, former Chief Judge for the New York Court of Appeals, was notoriously reputed to have said that “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted,” indicating that grand juries were merely rubber stamps for prosecutors.

    The odd exception seems to be law enforcement agents who shoot or kill civilians, particularly people of color. As indicated in Myca’s link above, it seems remarkably rare for cops to get indicted, far far more so than the general population. Hence the saying, “You can indict a ham sandwich, but you can’t indict a pig.” Sure sure, the stats could be confounded and maybe the crimes are different in some way not reflected in the numbers. I find that extremely doubtful, but that’s just me.

    Now I readily admit that White and Balko do have their own angles on this. Both tend to write through a civil libertarian lens that is critical of authority. So I’m prepared to acknowledge that these are biased sources (White is currently a defense lawyer; Balko is a libertarian who primarily follows cases of police abuse and misconduct).

    But what I’m wondering is, do you have any sources of your own that you’d like to cite? For example, perhaps you have a link you’d like to share that indicates grand juries are a high hurdle for prosecutors to clear in order to secure an indictment. Or a link suggesting that grand juries rarely show deference when law enforcement agents are in the dock. Both g-and-w and Myca offered up evidence in the links above. Do you have any of your own that you’d be up for sharing?

  41. 41
    Charles S says:

    McCullogh also failed to get an indictment of 3 police officers and an ATF officer who shot and killed two unarmed suspects in a drug bust. In that case, he failed to present evidence to the grand jury (testimony from ten other police officers) that contradicted the accused officers’ story, and then publicly lied about what he had done. McCullogh also once used a grand jury to out a whistle blower to the police.

  42. 42
    Myca says:

    JutGory:

    let me be clear. No, MY state has procedures about who gets indicted by a grand jury.

    No, I get what you’re saying. My point was that even if we grossly, hugely overestimate the effect from that kind of thing on a nationwide scale, it still doesn’t get us anywhere near your claim.

    I think the problem is that your argument is essentially “sometimes numbers are wrong or misleading.” And yes! Sometimes they are! Still, all things being equal, I’ll take “numbers and evidence” over “made-up suppositions” every day of the week, and right now “made-up suppositions” is what you’ve got on offer.

    If these numbers are wrong or misleading, demonstrate that. “They could be,” gets us nowhere.

    Charles:

    McCullogh also failed to get an indictment of 3 police officers and an ATF officer who shot and killed two unarmed suspects in a drug bust.

    Man, I wonder what race those unarmed suspects were.

    Yep.

    —Myca

  43. 43
    nobody.really says:

    1. On grand juries:

    From fivethirtyeight.com:
    “U.S. attorneys prosecuted 162,000 cases in 2010, the most recent year for which we have data. Grand juries declined to return in indictment in 11 of them.”

    fivethirtyeight.com, in turn, cites the Federal Justice Statistics 2010 – Statistical Tables. These tables do in fact state that for 2010, grand juries rejected only 11 cases.

    But I couldn’t find any source for the 162,000 cases figure. Moreover, I couldn’t find anything to say what percentage of cases had grand juries. While every state has provision for empanelling a grand jury, most states don’t use them. The Fifth Amendment provides for the use of grand juries only for federal “capital, or otherwise infamous crime[s] … except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger….” And even then, a defendant can waive this use of a grand jury – say, if there’s a settlement (which is how most cases end).

    In short, it appears that 11 is the appropriate numerator, but I can’t tell what is an appropriate denominator.

    2. On the power structure of Ferguson: I learned (from NPR? St. Louis Post-Dispatch?) that the myriad postage-size municipalities of St. Louis County vary wildly in affluence. Indeed, they were largely created as a scheme by wealthy neighborhoods to horde their tax revenues and municipal services for themselves.

    Ferguson, in contrast, is poor. It has few businesses to tax. So it raises revenues by fining powerless people. It assesses fines on non-resident landlords, and by ticketing cars for any infraction they can devise. These municipalities have enormous amounts of outstanding tickets – something like an average of 48 outstanding tickets for every resident of the municipality.

    And allegedly St. Louis’s black-controlled municipalities engage in the same practices. Poor is poor.

    This suggests that the victim was not killed for being black in a white-run town. Perhaps he was killed for being powerless in a poor town. When police are tasked with raising the revenues to pay for all government services (including their own salaries), they naturally have an adversarial relationship with everyone.

  44. 44
    Myca says:

    fivethirtyeight.com, in turn, cites the Federal Justice Statistics 2010 – Statistical Tables. These tables do in fact state that for 2010, grand juries rejected only 11 cases.
    But I couldn’t find any source for the 162,000 cases figure.

    I’ve emailed the author of the piece, I’ll post the math if he responds.

    This suggests that the victim was not killed for being black in a white-run town. Perhaps he was killed for being powerless in a poor town.

    I disagree. ‘That class matters’ is not evidence that race does not matter.

    —Myca

  45. 45
    Nancy Lebovitz says:

    If grand juries almost always indict, why have them at all? It seems as though they aren’t adding information to the system.

  46. 46
    brian says:

    If grand juries almost always indict, why have them at all? It seems as though they aren’t adding information to the system.

    Nancy, it was explained to me once that grand juries are a sort of a filter for weak cases. A prosecutor knows that a weak or baseless case won’t get past the filter. The reason almost every case makes it past the “filter” is because prosecutors won’t even BRING a case before a grand jury if they think it won’t pass muster.

    The reason this case is standing out is because the prosecutor IMHO presented a strong case that SHOULD have passed the filter as if it was weak. In boxing terms, he took a dive.

  47. 47
    Myca says:

    nobody.really:

    But I couldn’t find any source for the 162,000 cases figure.

    Ben Casselman replied to me this morning, and indicated that the 162k figure was the result of taking the number of cases that prosecutors ‘disposed of’ from table 2.2 (193,021), and subtracting the number they ‘declined to prosecute’ from table 2.3 (30,670).

    If grand juries almost always indict, why have them at all?

    They grew out of English common law and the principle that there ought to be a check on the ability of the government to bring frivolous prosecutions. I sort of lump them together mentally with the Electoral College as “ideas that made sense in their day, but are kind of a weird legal remnant now.”

    —Myca

  48. 48
    Brian says:

    Myca-

    I sort of lump them together mentally with the Electoral College as “ideas that made sense in their day, but are kind of a weird legal remnant now.”

    May be the first time I disagreed with you. If you thought BS legal harassment was bad NOW just imagine what a prosecutor could do without that check of power. Juries of common citizens are flawed as hell, and frequently dumb as a bag of hammers. But at least it’s SOMETHING to prevent total oligarchy..

  49. 49
    gin-and-whiskey says:

    Grand juries aren’t really a check on power, though. Because the grand jury is made up of laypeople (who tend to trust the prosecutor) and because there is no defense lawyer present, they tend not to question anything at all. If anything they are adding to the government power, not taking away from it.

  50. 50
    Myca says:

    Brian:

    May be the first time I disagreed with you. If you thought BS legal harassment was bad NOW just imagine what a prosecutor could do without that check of power.

    G&W:

    Grand juries aren’t really a check on power, though.

    Right. And this is even something we could (Or someone could. Not me.) do some comparative analysis on. Not all states empower grand juries – if those states that don’t engage in more state abuse of prosecutorial power than states that do, then I’d consider the possibility that grand juries still serve as a check on abuse.

    I’d bet they don’t, though. All the evidence I’ve seen is that grand juries serve as a rubber stamp for the prosecution.

    —Myca

  51. 51
    Nancy Lebovitz says:

    Grand juries might be something of a check on power simply because even if they almost always indict, they still take up a chunk of the prosecutor’s time.

  52. 53
    Myca says:

    I’d be interested in what you find from reading through those, Brian.

    Though I don’t think Grand Juries are particularly useful, I don’t think they’re particularly harmful either – after all, once there’s an indictment, then there’s an actual trial, where all the evidence gets examined.

    —Myca

  53. 54
    brian says:

    I’m just sorry I didn’t think of this back in September. I’m taking a SOCIAL WORK AND THE LAW class for my Master’s Degree. Everyone else got to do interesting subjects on various areas our clients can get crushed, I drew malpractice against mental health professionals.

    If this particular event highlights anything, it’s the need for some serious reform efforts and that requires constant, well organized and loud public demand. My law professor has been a major part of just trying to tighten up loopholes in the domestic/child abuse laws in my home state for 20+ years. To hear her tell it you’d think Satan was bribing state legislators to keep things awful.

    My opinion is that finding a way to keep people from giving up on the system is the only way to change the system. (My above prisonization comments apply here.) 45 million Americans feeling like they’re all alone in this world is the biggest problem I can see.

    An oppressor WANTS the people to sit down, shut up and give up, or better yet riot and rebel so that the most trouble-making peasants and livestock can be culled from the herd for breeding better serfs.

    But what do I know?

  54. 55
    RonF says:

    Regarding “outside agitators” – CNN reported that of the 63 people arrested the first night, 9 were from Ferguson. The rest were not.

    Kate: “once they decide to pursue a case” = when they decide to bring it to a grand jury/jury = they have decided there is probable cause”

    Harlequin: “I think it’s clear that the treatment Wilson received was different than the treatment almost any other defendant would have received. ”

    IIRC the original decision was to NOT bring Officer Wilson before a grand jury, a decision that was reversed in the face of political pressure, not for legal reasons. In which case Harlequin is right, but for a reason different from what he supposes.

    Also – from the legal blogs I’ve read, those lawyers who have read the transcript are rather certain that Officer Wilson would not have been convicted. And the purpose of trials in the U.S. is not to put on show trials to satisfy rioters or people like Rev. Sharpton.

    Brian: “I haven’t had time to look myself but I am surprised that no one in any media I follow has dug up the registered voter to citizen / voter turn out numbers.”

    I’ve seen the numbers. I can’t find them now – there’s been an awful lot written on this story and it’s hard to find specific articles – but it’s very low. IIRC something on the order of 25% or less.

    Myca: “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.”

    Which may indicate that prosecutors bring shootings by police in front of grand juries that they should not have brought, and would not have brought if they had not involved police, in response to political pressure.

  55. 56
    RonF says:

    So, to the point of the video – “black lives matter.” Yes, they do. And so do white lives, and Asian lives, and Hispanic lives, and all lives. What the evidence and testimony presented to the grand jury seems to show is not that Mr. Brown’s life didn’t matter. What it seems to have shown is that he got shot because he assaulted a police officer, attempted to seize his weapon and then, upon being repulsed, attempted to renew his assault. Policemen’s lives matter, white or black. “Black lives matter” means that cops should not shoot black people down like dogs. They do not mean that white cops should risk death from someone assaulting them rather than use their weapon.

    Amp:

    Suppose that Brown had killed Wilson with his Demon Hulk Hogan powers.

    O.K., Amp – what’s this? I’ve seen this thinking before in this story and I think it’s absurd and misleading. Mr. Brown was 6′ 5″ and weighed 285 pounds. Officer Wilson was 6′ 4″ and weighed 210 pounds. That’s a 75 pound weight differential, and from the pictures I’ve seen of Brown that was 75 pounds of muscle. I’m 6′ 2″ and > 250 pounds, and I have little doubt that if I assaulted an armed man who was a little shorter than me and 75% of my weight and started to struggle for his gun I could very quickly force that man into having to choose to either a) absorb a possibly fatal beating, b) get shot, or c) shoot me. Sarcastic remarks like that obscure the legitimate points in this debate. Every story about this issue lead off that a white cop shot an unarmed black man. The fact that someone is unarmed does not mean that they do not present a deadly threat.

  56. 57
    Pete Patriot says:

    It’s fair to say if Wilson had forgotten to holster his gun that morning, he’d have likely just been beaten, but it’s unlikely him or Brown would have been killed. That’s not to say people don’t die in fist fights, just that it’s uncommon, or that any of us wouldn’t have pulled a gun in his place if we had one.

    The sad thing is we’re getting awful pieces like the video (fyi people have died in the riots and they started before the decision) and while there is a problem and lots of easy police shooting cases that could be highlighted, because of early misinformation and social unrest, this is the one making the rounds.

    One example: Wilson very clearly said that when he fired his gun, Brown’s right hand was on top of the gun … But the MA said that the injury on Brown’s right thumb shows that Brown’s hand was six or eight inches in front of the gun when the gun was fired.

    Wilson said he fired twice in the car. Once when Brown was holding the gun, once when Browns hand was inside the car but not on the gun. That’s corroberated by residue and flesh found in the car.

    Wilson got special treatment – treatment that no black kid would ever get

    Do you really think black kids never make justifiable homicides?

  57. 58
    RonF says:

    According to the FBI, about 410 people were fatally shot by law enforcement officers in 2012. According to another link on the FBI web site that I saw but did not save and cannot now find (damn it) about 123 of them were black (32% was the number given), about 13% were Hispanic, and the rest were white. What that means is that more whites than blacks were shot dead by cops in 2012, but that blacks are shot dead disproportionately to their percentage of the U.S. population. However, blacks commit violent crime disproportionately to their percentage of the U.S. population, a behavior which is going to expose you to much greater chances of getting shot by the police. And yet when cops shoot white people there are no huge protests – apparently there are good reasons for them to do so – but when cops shoot black people there are no good reasons, we are to presume “racism”.

    Is racism a reason for why blacks disproportionately commit violent crime? I’m sure you’ll answer in the affirmative. Are there racist cops who abuse their ability to use deadly force? Hell, I live near Chicago, folks. I’ll answer in the affirmative to that one. My point in raising this is not to debate that but to point out that the numbers do not support the concept that there is a massive epidemic of racist cops shooting black people. And apparently the evidence does not support that Officer Wilson is a racist cop who abused his power and killed an innocent black man.

    Where that kind of thing occurs, and where the people involved are not brought to justice, you can count on my support to protests and demands. But this is not such a case. Instead, what we see is people like the man in this video, who presumes that the fact that a white cop was not tried for murder when a black man tried to take his gun and possibly kill him means that “black lives don’t matter.” And what we see is that people made that judgement before any testimony was heard or any evidence examined, and incited protests and riots on that basis. I have sympathy for the young man’s mother and grandmother and family. But having sympathy for people’s losses does not mean approval or even sympathy for those who would act on the basis of preconceived beliefs and suppositions to commit violence against either person or property.

    And yes, property is important too. Property of black people who have a hell of a time getting enough capital together to open a bakery or a gas station or other businesses only to see their livelihood, their ability to keep themselves and their families out of poverty and government dependence destroyed by an unthinking mob.

  58. 59
    RonF says:

    It’s fair to say if Wilson had forgotten to holster his gun that morning, he’d have likely just been beaten, but it’s unlikely him or Brown would have been killed.

    Perhaps – but because he does carry a gun, in this circumstance it’s very possible he’d have been killed with it if he had not killed Brown.

  59. 60
    Ampersand says:

    Suppose that Brown had killed Wilson with his Demon Hulk Hogan powers.

    O.K., Amp – what’s this?

    A sarcastic reference to the fact that Wilson, in his testimony, said Brown was like a demon and like Hulk Hogan.

    If Wilson’s testimony is truthful, then I think he was well within his rights to shoot at Brown during the struggle in the car. I have a lot of doubts about the truth of Wilson’s testimony, but given the evidence, if I was on the jury at a trial, and if nothing new came out because of the trial (a BIG “if”), then I’d vote “not guilty.”

    None of that, however, changes the fact that what actually happened was a show trial, and that was wrong.

    ETA: I’m not saying that the outcome of the show trial was wrong (necessarily). I’m saying that even if Officer Wilson is 100% innocent, holding a show trial is still wrong.

  60. 61
    brian says:

    Ron,

    Mr. Brown was 6′ 5″ and weighed 285 pounds. Officer Wilson was 6′ 4″ and weighed 210 pounds. That’s a 75 pound weight differential, and from the pictures I’ve seen of Brown that was 75 pounds of muscle.

    Problem with that is that Wilson COULD have called for back up if he was scared as Barney Fife. Wilson was walking down the middle of the street, not in a high speed pursuit. That’s assuming his “I heard about the robbery on the radio” thing was true.

    If it was just a “Hey kid, get on the sidewalk and out of the street” that got out of hand, hey, de-escalation isn’t that damn hard. Or call the aforementioned backup.

    Of course brown could have NOT walked down the middle of the street and used the sidewalk, and NOT apparently tried to sucker punch a cop for telling him to get out of the street. But my read is that brown decided to “keep it real.”

    Both of them seem to have decided to play act like life was a movie instead of thinking life through. BUT to avoid any false equivalency one got to go home to his wife and kid and the other didn’t get far at all. The one with the badge and gun should have had SOME more damn sense than the teenager in the situation.

    I listen to people’s stories all day for a living, it’s amazing how often two people decide to have a “who can be stupider and have worse social skills” contest until someone goes to the ER or the morgue. But the THEORY is that trained authority figures are grown ups. Not the case always, obviously. And THAT my conservative children is why people are upset. Get it now?

  61. 62
    Harlequin says:

    Harlequin: “I think it’s clear that the treatment Wilson received was different than the treatment almost any other defendant would have received. ”

    IIRC the original decision was to NOT bring Officer Wilson before a grand jury, a decision that was reversed in the face of political pressure, not for legal reasons. In which case Harlequin is right, but for a reason different from what he supposes.

    That assumes the original decision to not bring Officer Wilson before a grand jury was the objective, obvious decision, not affected by the DA’s perception of police officers, Brown, or the proper use of force.

    (Also, my proper pronoun is “she”. :) )

    Also – from the legal blogs I’ve read, those lawyers who have read the transcript are rather certain that Officer Wilson would not have been convicted. And the purpose of trials in the U.S. is not to put on show trials to satisfy rioters or people like Rev. Sharpton.

    Right. And one of the purposes of a trial is to have an adversarial system where both sides present their best cases for why they are right. In this case, we don’t have that–as Amp describes in comment #33, the questioners pointed to holes in the witness testimony that went against Wilson, but largely not in the testimony that favored him. Which is also why looking at the transcripts doesn’t tell us what would have happened in a real trial.

    Suppose that Brown had killed Wilson with his Demon Hulk Hogan powers.

    O.K., Amp – what’s this? I’ve seen this thinking before in this story and I think it’s absurd and misleading.

    You’re right, it is absurd and misleading! While there was a large weight difference between the two men, and that kind of weight/muscle difference can be deadly, using such hyperbolic terms is obviously an overstatement of the danger faced by Wilson by analogy to superhuman characteristics.

    From Darren Wilson’s testimony:

    And when I grabbed him, the only way I can describe it is I felt like a five-year-old holding onto Hulk Hogan. (p 212)

    The only way I can describe it, it looks like a demon, that’s how angry he looked. (p 225)

  62. 63
    Harlequin says:

    Ha, and my sarcasm gets undercut a bit when somebody else posts the same thing while I’m typing!

    I realized I forgot to say above–thanks for the citation, Myca; I went through that article and even read that paragraph and somehow totally missed it…

    RonF:

    Policemen’s lives matter, white or black. “Black lives matter” means that cops should not shoot black people down like dogs. They do not mean that white cops should risk death from someone assaulting them rather than use their weapon.

    I agree with all of this. But one of the questions we have to ask is whether a police officer’s fear that s/he would be killed was a reasonable fear. I can simultaneously believe that Wilson thought he was in mortal danger, while recognizing that that perception may have been incorrect and informed by racism.

    According to the FBI, about 410 people were fatally shot by law enforcement officers in 2012.

    They track justifiable homicides–different from “all police shootings.” Here’s a recent fivethirtyeight article on this, though I haven’t read most of it yet…

  63. 64
    Harlequin says:

    Pete Patriot:

    while there is a problem and lots of easy police shooting cases that could be highlighted, because of early misinformation and social unrest, this is the one making the rounds.

    I really hate this meme that because Brown wasn’t a perfect and completely innocent victim, it’s inappropriate that people care about justice on his behalf.

    Wilson got special treatment – treatment that no black kid would ever get

    Do you really think black kids never make justifiable homicides?

    Sure they do. But do you really think that a DA would present all the evidence in the case to a grand jury, taking 20 meeting sessions and several months, and questioning witnesses who didn’t agree with the black kid’s account of what happened, and allowing the black kid to testify and give his/her side of the story more or less uncritically?

  64. 65
    Ruchama says:

    However, blacks commit violent crime disproportionately to their percentage of the U.S. population, a behavior which is going to expose you to much greater chances of getting shot by the police. And yet when cops shoot white people there are no huge protests – apparently there are good reasons for them to do so – but when cops shoot black people there are no good reasons, we are to presume “racism”.

    The NY Times put together a list of “notable” deaths where people were killed by police in NYC. I have no idea how they decided what counted as notable, but every single person on this list is a black or Hispanic man or teenage boy. http://www.nytimes.com/interactive/2014/nyregion/fatal-police-encounters-in-new-york-city.html Almost none of them were involved in violent crimes at the time. (There are a few where the brief descriptions mention that there was a “brawl” going on, but not specifically how the victim was involved in it.) Every one of them was unarmed. I know of one case (Gil Collar) of an unarmed white person who was shot by police. I just tried googling, and found one more, Dillon Taylor. I tried a few different variations of “white man shot by police” (without quotes), and looked through the first few pages of hits for all of them, and every relevant link was about one of those two men. Not remotely a good data set, but there seem to be a whole lot of bloggers right now trying to come up with cases of unarmed white men shot by police, to “prove” that police aren’t racist, and they’re all coming up with these same two cases, while the Times has 12 “notable” cases just within NYC.

  65. 66
    Ampersand says:

    Ron:

    Actually, although I don’t have links, I think there have been cases here in Portland in which people protested police shootings of white suspects. Maybe that’s because we protest a lot here in Portland?

    But who cares? Why does it even matter? Are you saying that people are racist if they object to the unjustified deaths of black people? If not, what are you saying?

    There are definitely questionable deaths of white people due to police actions.

    But there’s also this to consider. It’s possible that even when whites and blacks act in the same ways, including waving guns around in public, blacks are more likely to be shot.

    Meanwhile, another grand jury refused to indict a cop in the death of Eric Garner today, even though we have a video. Garner was not being violent; he was not a danger to those around him; he was literally attacked by a half-dozen police and put in a choke hold, and as a result he’s dead. And that act is, in effect, not illegal.

    My point in raising this is not to debate that but to point out that the numbers do not support the concept that there is a massive epidemic of racist cops shooting black people.

    The word “epidemic” is pretty meaningless in this context. That you have measured this in some undefined way and declared it “not an epidemic” is not meaningful or interesting, and does not make protestors wrong to believe that the status quo is intolerable.

    And apparently the evidence does not support that Officer Wilson is a racist cop who abused his power and killed an innocent black man.

    You say this (apparently) based on a show trial in which there was absolutely no meaningful attempt to find the truth, and in which the officer’s version of events was not subject to any critical scrutiny at all.

    The truth is, we don’t know exactly what happened when Wilson shot Brown. Maybe Brown was the unhinged maniac Wilson described; maybe the situation was not that one-sided. There was no video, there is no absolute evidence, and obviously no one will ever hear Brown’s side of the story. We don’t know to a certainty what happened, and if you don’t know that, then you don’t know anything.

  66. 67
    brian says:

    Come to think of it, if it helps in the long run, I’m ALL in favor of more white people getting shot. Just putting the idea out there. Hell, I could help make the lists.

  67. 69
    RonF says:

    Amp:

    I’m saying that even if Officer Wilson is 100% innocent, holding a show trial is still wrong.

    True. But your viewpoint is that the grand jury proceeding was a show trial. I’m thinking that an actual trial would have been a show trial, and that the prosecutor, bound by the conflicting demands of Missouri law (as explained by jutgory on one hand) and the political situation on the other, chose to attempt to split the difference by conducting a grand jury proceeding that he thought unjustified but used it to get as much testimony and evidence into the record as possible – which he then, at variance with usual practice, made public so that everyone could see what happened.

    It is very true that Mr. Brown deserves justice. But what I see people forgetting is that Officer Wilson does too. It is unjust to put someone on trial if there is no probable cause to do so. That’s not only self-evident, we see above that it is spelled out in Missouri law in its instructions to prosecutors. Bringing justice to Brown is not done by bringing injustice to Wilson.

    I can simultaneously believe that Wilson thought he was in mortal danger, while recognizing that that perception may have been incorrect and informed by racism.

    I’ll go along with that. But there’s a difference between recognizing the possibility that said perception may have been incorrect and informed by racism and assuming that it was – apparently purely on the basis that Brown was black and Wilson is white. Not to mention the narrative that was pushed before the trial that claimed that Wilson had no reason to presume he was in mortal danger and just gunned Brown down while he had his hands up because he was black.

  68. 70
    RonF says:

    But who cares? Why does it even matter? Are you saying that people are racist if they object to the unjustified deaths of black people? If not, what are you saying?

    No. I’m saying that since the police have shot and killed even more white people than black people – a circumstance in which it is presumed that no racism is involved – then there are clearly numerous non-racist occasions for the police to fatally shoot people. To then presume (as opposed to consider and investigate the possibility) that a white-on-black shooting was unjustified and that racism was involved in is itself racist.

    It further appears to me after watching that video that the person who shot it is making precisely that presumption. Are unjustified shootings of anyone wrong? Sure. Is a cop doing so based on racism particularly awful. Absolutely. But the narrative being pushed by that video is that what happened in Ferguson is an example of such and an exemplar of the meme that “black lives don’t matter”, apparently solely on the basis that Brown was black and Wilson was white – and that is a) not supported by the facts and thus b) racist.

  69. 71
    RonF says:

    We don’t know to a certainty what happened, and if you don’t know that, then you don’t know anything.

    What we do know is that 12 people heard 5000+ pages of testimony and evidence and decided that there was no probable cause to put Officer Wilson on trial. People seem to be forgetting something here. Those 12 people are not automatons or fools bound to do the prosecutor’s bidding. They know that “probable cause” != “guilty beyond a reasonable doubt”. They knew that they heard Wilson testify absent a challenge. They are not non-entities, they are human beings with agency. I see no reason to doubt that they were able to understand what they were hearing – and what they were not hearing.

    And after all that, they still decided that there was no probable cause to bring Wilson to trial. What reason is there to have no trust in those 12 people? Do we know everything? Perhaps not. But then we never do, do we? I trust those 12 people to decide that in this case, we knew enough.

  70. 72
    gin-and-whiskey says:

    RonF, I think you’re using 20/20 hindsight.

    At the outset, there appeared to have been enough evidence to bring a charge. (Notably, had people done the usual thing immediately, there might have been even more evidence. Like, say, not letting Wilson go and clean up before they took evidence, etc.)

    Then, once that evidence was collected they would have had the usual one hour grand jury presentation, and subsequently a trial.

    It wouldn’t have been a “show” trial because at that time they would not yet know what all of the evidence would show, or how Wilson would interact on the stand. And it wouldn’t be a “show” trial because prosecutors, witnesses, etc. tend to act differently in public proceedings. So do jurors, FWIW, when they are not protected by confidentiality.

  71. 73
    Jake Squid says:

    I define a show trial as a trial with a predetermined outcome – like the trials that took place during Stalin’s purges in the USSR. You seem to be using something else as the definition, RonF. Can you tell me what your definition is?

  72. 74
    Myca says:

    RonF:

    No. I’m saying that since the police have shot and killed even more white people than black people – a circumstance in which it is presumed that no racism is involved – then there are clearly numerous non-racist occasions for the police to fatally shoot people. To then presume (as opposed to consider and investigate the possibility) that a white-on-black shooting was unjustified and that racism was involved in is itself racist.

    This is a claim you’ve made before, and more than once. “Police shoot all kindsa people, baby! Why you getting all worked up?” You’re flat-out wrong. You are factually incorrect.

    Young black men are 21 times as likely to be killed by police as their white peers.

    And no, before you ask, that’s not because they’re more likely to do something threatening to precipitate it. In fact if you read the link, you’ll see that “the less clear it is that force was necessary, the more likely the victim is to be black.”

    —Myca

  73. 75
    JutGory says:

    Kohai@ 40:

    Both g-and-w and Myca offered up evidence in the links above.

    Actually g&w linked to an argument, and I have given my response. As for Myca, he said @42:

    Still, all things being equal, I’ll take “numbers and evidence” over “made-up suppositions” every day of the week, and right now “made-up suppositions” is what you’ve got on offer.

    If these numbers are wrong or misleading, demonstrate that. “They could be,” gets us nowhere.

    Fine, your numbers are lying. Let’s start with this, Myca @19:

    “U.S. attorneys prosecuted 162,000 cases in 2010, the most recent year for which we have data. Grand juries declined to return in indictment in 11 of them.”

    That’s less than 0.01 percent of the time.

    You are mixing apples and oranges. Do you know where the 162,000 number comes from?

    Near as I can tell, it is the total number of offenses from the bjs link on Table 2.2 (193,021), less the number of cases declined (30,670) (Table 2.3) that gives you 162,351. Table 2.3 has the 11 cases where there was no indictment, but those 11 are not part of the 162,351. So, the percentage you calculated is meaningless, because the numerator is not a part of the denominator.

    Then, there is this, Myca @35:

    You say that First Degree Murder charges have to proceed by grand jury, and that might skew the numbers? Okay, well, nationwide in 2010, there were 12,996 murders.

    So let’s discount those out of the total, taking it down to 11 versus 149,004.

    Actually, you know what? Let’s do it again – 11 versus 136,008.

    Here, I have no idea what you are trying to do. You are just subtracting 12,996 from 162,000. To what end? Table 2.2 puts the number of murders under consideration at 966. So, it appears that you are mixing up the number of murders nationwide (12,996) with the number of federal cases prosecuted (162,xxx).

    Then, we get into what Tables 2.2 and 2.3 don’t tell us. They do not break things down by offense level-specifically felonies vs. misdemeanors. It is my understanding that, under Rule 6 of the Federal Rules of Criminal Procedure, all felonies are prosecuted by indictment, unless waived and that misdemeanors are charged by information. So, the 162,xxx cases prosecuted do not distinguish between felonies and misdeameanors, so the 11 cases declined would need to be placed in reference to the number of felonies charged.

    Those numbers appear at Table 4.1, where it shows 99,921 felonies charged and 12,105 misdemeanors. I am not sure why these numbers don’t add up to 162,xxx, except that Table 4.1 are for those commenced, whereas the 162,xxx are the dispositions. It makes sense that, if you are going to place the 11 non-indictments into any context, it would be in connection to the cases commenced in the same time period. The 11 felony non-indictments should be looked at in connection to the 99,921 indictments that did occur, not the 3-year old case that got resolved at trial during that time-frame.

    But, that gets us to another issue: saying you have 11 non-indictments out of 99,932 attempts gives no real meaning to the numbers. You talked about murders, but Table 4.1 has a laundry list of felonies and we have no idea what types of cases make up the 11 non-indictments. Now, we know from Table 2.3 that, out of the 193,021, they declined to prosecute 30,670 cases (almost 15.9%). Now, of those 30,xxx cases, 8,314 cases (27%) were declined for case-related reasons. Of those, 7,127 (23.7%) were for weak evidence.

    What is the relevance of this? It looks like the federal prosecutors are pretty damn good at judging the strength of their felony cases. They got rid of the weak ones prior to indictment and were only wrong 11 times. And, we have no idea if those non-indictments were for murder, wildlife, customs laws, postal laws, gambling, fraud, forgery, or embezzlement (some of which could be very difficult to indict).

    So, yes, I am still skeptical of your numbers. Even if they are accurate, you have misused your “numbers and evidence.” They don’t show what you think they show (or are using them to argue).

    -Jut

  74. I think it’s important to point out that the ProPublica piece Myca linked to above, as well as this piece in The New York Times, the FiveThirtyEight piece that someone linked to above, as well as this piece on Vox are all careful to point out—or are actually about—the fact that the numbers we have for the use of lethal force by police officers in the United States are woefully incomplete. No one disputes that the numbers we do have show a racial disparity, but the fact remains that we cannot know for certain from the data either:

      1. Why that disparity exists – (This is to Ron’s point about Blacks being disproportionately involved in violent crime and how that might be an explanation for why Black men are shot a rate disproportionate to their numbers.)

      2. Whether that disparity would continue to exist if we indeed had a complete, or at last as complete as possible, statistical picture of what is going on – (In the Vox piece, for example, the writer explains one reason why the fatal shooting of whites might actually be undercounted.)

    I emphasize “from the data” because I do not want to lose sight of the fact that the data, even if we had a complete data set, would not illuminate the lived experience of Black people throughout this country in their relationship with police. That lived experience is also important evidence to consider in thinking about how race and racism has shaped the cases—and our perceptions of the cases—of Michael Brown, Eric Garner, Trayvon Martin, and you could go all the way back to Berhard Goetz in the 1980s, and even earlier than that.

    One bit of analysis from the Vox piece that I thought spoke volumes, however, suggests that “the less clear it [was] that force was necessary [in an instance where a police officer shot and killed someone], the more likely the victim [was] to be Black.” The analysis is a little bit complicated, so I am pasting the entire thing in below. The SHR is the Supplemental Homicide Report, which is published by the FBI.

    The SHR data does not indicate whether victims were armed when they were killed by police. But the ways the homicides are classified can offer clues as to how urgent or dangerous a situation was when the shooting occurred.

    There are six different subcategories of “felon killed by an officer.” Three are cases where police said the victim was attacking someone when he was killed. These reports may or may not be accurate, and can boil down to an officer’s word. (Based on Wilson’s account of the killing of Brown, for example, the Ferguson Police Department could submit his death to the FBI as a “felon killed by an officer, attacking the officer.”) But they represent the cases in which the officers who killed someone claimed that there was an urgent safety need for them to do so.

    The other three are cases where police say the victim “attempted flight” from police, “was killed in the commission of a crime,” or “resisted arrest.” Those are all “justifiable” homicides, according to the FBI’s definition. But they’re less clear in indicating whether the officer’s actions were necessary.

    Other variables recorded by the FBI can also provide clues about how dangerous the victim really was — or at least whether police approached him as dangerous before killing him. According to criminologist Klinger, “when a shotgun or rifle is” the homicide weapon, it’s more likely that there was “an indication of violence prior to the police entry into the situation” than when the victim is killed with a standard police-issue handgun. That’s because when police are called to deal with someone who’s already violent, in what they call a “hot call” or a SWAT raid, they bring bigger weapons. Similarly, if multiple officers shot the victim, it’s more likely to be because multiple officers had been called to deal with a dangerous situation.

    The SHR lists 118 victims of “justifiable homicide” who were killed while fleeing, committing a felony, or resisting arrest — not because they were attacking anyone. And 102 of those weren’t killed with a rifle or a shotgun, but with a handgun. In these 102 cases, the necessity of the officers’ use of force is the most ambiguous. And in these 102 cases, the victims are more likely than in any other justifiable homicide categories to be black.

  75. 77
    Pete Patriot says:

    Sure they do. But do you really think that a DA would present all the evidence in the case to a grand jury, taking 20 meeting sessions and several months, and questioning witnesses who didn’t agree with the black kid’s account of what happened, and allowing the black kid to testify and give his/her side of the story more or less uncritically?

    There are black people who have admitted justifiable homicide without the prosecutor even taking the case to grand jury let alone trial. So I don’t know the reason for the rhetorical question, we know there are black people who have had better treatment by the justice system than Wilson.

  76. 78
    Kohai says:

    JutGory @ 75,

    I see what you’re saying with the stats. I agree that it’s not the full picture, and that it would be great to have more data available. For one thing, the stats from fivethirtyeight.com only show the cases in which prosecutors sought indictment, not the total number of possible cases for which they might have wished to obtain one. It could well be that there is some much larger number of weaker cases that never get brought to a grand jury, and that prosecutors only submit cases where the evidence is strong enough to support a likely conviction. If that’s true, then given the low number of refusals to indict, federal prosecutors must be extremely conservative about bringing charges before a grand jury. The available data from fivethirtyeight.com is consistent with that possibility.

    However, it is also consistent with the possibility that grand juries serve as a rubber stamp for prosecutors, even for very weak cases, and that a refusal to indict is a rare and surprising outlier.

    See what I’m saying? The data can be interpreted in multiple ways, and coming down on one side or the other would seem to require outside information. And frankly, either way it looks pretty troubling to me.

    If we look at each case as a “game,” then it’s 162,000 games played with 11 losses. A 161,989-11 win-loss record for the 2010 grand jury season. That’s a jaw-dropping win record. If we presuppose that federal prosecutors are very conservative about bringing cases to the grand jury (i.e. only ever bringing cases that will likely win), then I have to imagine that a massive number of weak cases are getting dropped in order to maintain that “win” record. And, consequently, that a large number of criminals are walking due to federal prosecutors’ hesitancy in bringing charges. If you believe that’s true, then their win record should be cause for uproar rather than praise.

    Conversely, if it means that grand juries are a rubber stamp, then that’s an open invitation for prosecutorial abuse. Prosecutors could arbitrarily throw people into the legal system based on minimal evidence. Ken White from popehat.com actually talks about that here: http://www.popehat.com/2014/02/27/the-kaley-forfeiture-decision-what-it-looks-like-when-the-feds-make-their-ham-sandwich/

    Back to your post. So when you say:

    What is the relevance of this? It looks like the federal prosecutors are pretty damn good at judging the strength of their felony cases. They got rid of the weak ones prior to indictment and were only wrong 11 times.

    It sounds like you’re making an empirical claim . Specifically, that of the two propositions above, the former is more likely to be true. Do you have information of your own that you’d like to share on why you find that likelihood so persuasive?

  77. 79
    Ampersand says:

    What we do know is that 12 people heard 5000+ pages of testimony and evidence and decided that there was no probable cause to put Officer Wilson on trial. People seem to be forgetting something here. Those 12 people are not automatons or fools bound to do the prosecutor’s bidding. They know that “probable cause” != “guilty beyond a reasonable doubt”. They knew that they heard Wilson testify absent a challenge. They are not non-entities, they are human beings with agency. I see no reason to doubt that they were able to understand what they were hearing – and what they were not hearing.

    So you’re saying that there’s no reason to have both a prosecutor and a defense attorney at trial? After all, according to you, as long as the jury is aware of the fact that they’re hearing people testify “absent a challenge,” there’s no need for a challenge. According to you, a trial where the jury only hears from one side is completely fair, and there’s no need for the jury to hear from two sides.

  78. 80
    Susan says:

    This wasn’t a trial. This was a Grand Jury proceeding. I would embark on an explanation of the differences, and the historical reasons for those differences, but I don’t think any of this would be persuasive in the current company.

  79. 81
    Myca says:

    RonF:

    So, to the point of the video – “black lives matter.” Yes, they do. And so do white lives, and Asian lives, and Hispanic lives, and all lives.

    I think Arthur Chu said it best:

    Do you crash strangers’ funerals shouting “I TOO HAVE FELT LOSS”? Do you run through a cancer fundraiser going “THERE ARE OTHER DISEASES TOO”?

    —Myca

  80. 82
    Myca says:

    JutGory:

    Fine, your numbers are lying

    No, you simply don’t understand my point, which is why you make a nit-picking response quibbling about the specifics of the numbers. My point isn’t the exact specifics of the numbers or the percentages, and honestly, to think it is is is a bit bizarre.

    My point is: Grand Juries refuse to indict on very few cases. And yes, the numbers support that.

    Now, your suggestion is that there’s an alternate explanation – that this isn’t because of the deference Grand Juries have for prosecutors, but rather because prosecutors weed-out those cases they think they might not get an indictment on. I suppose that’s possible. I find it unlikely, though, after a lifetime of hearing from various sources about how easy it is to get an indictment (the ham sandwich standard, & etc.).

    Do you have evidence for it?

    —Myca

  81. 83
    JutGory says:

    Bullshit, Myca!

    @ 42, you suggested that if these numbers are misleading, that I should demonstrate that. Now, you call it “nit-picking.” Did I fail? I think I nailed it. If not, please show your work.

    You said you rely on “numbers and evidence” instead of unsupported suppositions. Now that I have shown you that you do not even understand the numbers you have cited, I am “nit-picking.” No. I am not nit-picking. You are face-saving. The nit-picking is that, yeah, 11 non-indictments out of 162,000 is not much difference than 11 out of 99,000. The important point is that you did not know the difference. You did not understand the numbers you were using to support your argument. Admit it.

    The moral of the story is that it is better to be skeptical in the face of the truth, than to be a believer in the face of a falsehood.

    That is why I choose skepticism as my default. I don’t simply believe what I am told, and am very careful about whom I trust to substitute my judgment with.

    -Jut

  82. 84
    Myca says:

    @ 42, you suggested that if these numbers are misleading, that I should demonstrate that. Now, you call it “nit-picking.” Did I fail? I think I nailed it. If not, please show your work.

    It depends on what I’m trying to use the evidence to show. If the entire weight of the argument rests on prosecutors only failing to receive indictments in specifically and exactly 0.001% of cases … well, boy howdy you got me.

    But that’s not the point, which why I spotted you 25k and was fine with generally playing loose and screwing around with the numbers.

    The point I was making was that it is very, very unlikely for a prosecutor to fail to get an indictment.

    Nothing you’ve said contradicts that.

    You did not understand the numbers you were using to support your argument. Admit it.

    No, I was making a general point, which is still true.

    Now, since you’re accusing me of being disingenuous, I think you’re falling afoul of my second request. I’m happy to keep discussing this, but I’d ask you to not be a jerk about it. Alternately, if you don’t think you’re able to do that, you’re still welcome in this thread, but I’d ask you to accept that you misunderstood my argument and, let the number issue go, and discuss other aspects of the case. Finally, if you don’t think you can do either of the above without being a jerk, maybe you could chose to bow out of the thread. Up to you.

    —Myca

    PS. By way of demonstrating why this makes literally no difference at all:

    11/162,000 = 0.006%
    11/99,000 = 0.01%

    The point I am making does not rest on a 0.004% difference. I think that if you think on it you’ll see that it couldn’t, really. The point isn’t an exact number, it’s that any way you slice it, the numbers are very very small.

  83. 85
    brian says:

    jut –

    The nit-picking is that, yeah, 11 non-indictments out of 162,000 is not much difference than 11 out of 99,000. The important point is that you did not know the difference. You did not understand the numbers you were using to support your argument. Admit it.

    Neurotypicals don’t care when that sort of thing is what you want to discuss. Just fyi.

  84. 86
    JutGory says:

    Brian, what you and Myca did not get (apart from the other things that I talked about) is that we are not talking about stochastic event. My point in bringing up the declinations for weak cases puts the 11 non-indictments in a different perspective. Suddenly, we have prosecutors declining to prosecute 10 percent of their felonies and, of the ones they choose to prosecute, they have a very small error rate.

    Myca can not pick all he wants around that about his general point, but we should know that: 1) 162,000 is a meaningless number in this case; 2) 11 out of 162,000 is a meaningless number in this case; and 3) 11 errors out of 8,000 is very small.

    In short, the numbers do not mean what he says they mean (either generally or specifically).

    -Jut

  85. 87
    JutGory says:

    Myca, you said “numbers and evidence.” If you think I am violating your second edict by taking you at your word, ban me. Just keep this comment in, so that. Others can decide if you are being unfair. I took your numbers and your evidence and I showed they were wrong. I am not accusing you of being disingenuous. Hanlon’s razor states that I should not attribute to malice what is as easily explained by ignorance.

    So, I will state: you Are not being disingenuous.

    You are just too. Quick to believe what you are told. You are right about the big picture, but you are wrong about the little picture. The problem is that you doubled-down on the number and evidence. Bad move. The skeptic will eventually win, if that is the bet.

    -Jut

  86. 88
    JutGory says:

    The last few comments are on an iPad, so, imagine proper spelling and punctuation and you may understand me perfectly.
    -Jut

  87. 89
    Myca says:

    Jut, just to be clear, which of those three options are you choosing? Please choose in your next comment.

    JutGory:

    In short, the numbers do not mean what he says they mean (either generally or specifically).

    Absolutely and categorically untrue. And, since you seem to want so badly to continue discussing this, the original quote you seem to have become fixated on was, from comment #21:

    Because 11 out of 162,000 does not seem to indicate that this sort of thing is routine.

    I will gladly concede if you can demonstrate that it is routine for prosecutors to fail to achieve an indictment for cases they take to the grand jury.

    —Myca

  88. 90
    brian says:

    Jut-

    Brian, what you and Myca did not get (apart from the other things that I talked about) is that we are not talking about stochastic event. 

    still don’t care. I know that statistical analysis makes you feel all warm and fuzzy, but I promise you that you are just making the rest of us with neuro cognitive developmental disabilities look bad by association. Stop stimming on a political discussion.

  89. 91
    JutGory says:

    Myca @ 89:

    Jut, just to be clear, which of those three options are you choosing? Please choose in your next comment

    .

    I do not know which 3 options to which you refer, so I will not choose. Do what you will. Ban me; whatever. Like I care, at this point; the numbers and evidence upon which you rely are meaningless and maybe someone will see that (or not) and it will not matter.

    It will just make you look petty. But, seriously, you say there are 3 choices, try to show your work. I have no idea which choices you are giving me.

    For the sake of being sporting, I pick Door Number 2.

    -Jut

  90. 92
    Myca says:

    Jesus Christ, dramatic much? I haven’t talked about banning you, and haven’t suggested I was going to ban you. I observed that this topic was making you act a little jerky, and offered some options on where we could go from here.

    The jerkiness I’m referring to, incidentally, has to do partially with focusing on me personally rather than my arguments. You seem very focused on ‘making me admit things’ and ‘demonstrating to everyone that I was wrong.’ I’d rather not have conversations like that.

    The three options I was referring to were:

    I’m happy to keep discussing this, but I’d ask you to not be a jerk about it. Alternately, if you don’t think you’re able to do that, you’re still welcome in this thread, but I’d ask you to accept that you misunderstood my argument and, let the number issue go, and discuss other aspects of the case. Finally, if you don’t think you can do either of the above without being a jerk, maybe you could chose to bow out of the thread. Up to you

    These options are still open to you. I swear to God, I am NOT threatening to ban you, & I would appreciate it if you stopped acting like I was.

    —Myca

  91. 93
    nobody.really says:

    “So who’s the real danger now, Mr. Social Justice Warrior? You see all those thugs out there? You see how you people act? What do you have to say now?

  92. 94
    Ampersand says:

    This wasn’t a trial. This was a Grand Jury proceeding. I would embark on an explanation of the differences, and the historical reasons for those differences, but I don’t think any of this would be persuasive in the current company.

    Susan, I understand the difference very well. But you didn’t understand the point I was making.

    What happened was the prosecutor turned a grand jury proceeding into a “show trial.” Not a trial; a show trial. A show trial doesn’t demonstrate the truth of anything, contrary to what Ron claimed.

  93. 95
    Brian says:

    This thread has gotten me reading up on it when I can. The topic of court reform in general is actually more interesting than I expected. I’m surprised that it hasn’t been made more of a focus by reformers. Oh wait, we barely have any reformers left. *smacks head*

    I can say after only four months of being an intern at a public defender’s office that the flaws are pretty obvious when you start looking. The PD lawyers are overworked, underfunded, barely have time to meet with the clients to discuss cases before a court appearance. So the deck is stacked from the get-go.

    On the other hand the CLIENTS are so fatalistic about the process that lawyers and forensic social workers can’t get 4 words out of the clients or even get them to keep appointments. I’ve seen people who refuse to go to their court appointed community service “just because” and wind up serving a 2 year sentence rather than do 60 hours in a soup kitchen. I’ve seen defendants tell a judge “But I don’t WANNA do rehab,” and wind up serving 3-5 on conspiracy to distribute charges instead. I heard about one defendant that decided to tell the judge essentially “You aren’t the boss of me,” while his PD was whispering “shutupshutupshutUP” and talk himself into a 20 year sentence when he could have plead out for 5.

    Yes, the system sucks. But good LORD some of these people work so damn hard to keep people from being chewed up and spit out, and OTHER people work even harder to dive right into the meat grinder under their own steam.

  94. 96
    RonF says:

    Myca: “Do you crash strangers’ funerals …?”

    That video isn’t a funeral. It’s someone attempting to make a political point based on false premises. Tell me it’s a tragedy that Michael Brown died and I’ll agree with you. Tell me that inequities in society that need to be addressed were a contributing factor in his death and I’ll agree that a very compelling argument can be made to support that and that an honest examination of the reasons behind those inequities and what can be done to change them needs to be done. But tell me that Michael Brown died not because he assaulted a police officer but that he was clearly murdered because society and police in general and Officer Brown in particular think “black lives don’t matter” and we must part company.

    Regardless of the factors leading up to Brown’s action, Wilson’s life was in danger and he had to act.

    Amp:

    So you’re saying that there’s no reason to have both a prosecutor and a defense attorney at trial? After all, according to you, as long as the jury is aware of the fact that they’re hearing people testify “absent a challenge,” there’s no need for a challenge. According to you, a trial where the jury only hears from one side is completely fair, and there’s no need for the jury to hear from two sides.

    No. What I’m saying is to remember that this was not a trial. It was a hearing to determine if there was probably cause to have a trial and try Officer Wilson for a crime. And it became clear – and was probably clear to the prosecutor from the outset as he prepared for the grand jury proceeding – that the physical and eyewitness evidence was such that there was no way at trial to get 12 people to vote unanimously that Wilson was guilty beyond reasonable doubt of a crime. We’ve already seen from JutGory’s posts that in such a situation Missouri law says that the prosecutor shouldn’t even have a grand jury hearing. But that was not politically viable. People cite the saying that a good prosecutor can get a jury to indict a ham sandwich. But I was under the impression, confirmed by the citations of Missouri law, that this saying illustrates how a prosecutor can abuse his power, not a demonstration of good practice on how he should use it.

    Could the prosecutor have rigged the grand jury proceeding to get an indictment and go to trial? Sure. But getting an indictment regardless of the facts is not justice.

  95. 97
    Grace Annam says:

    brian:

    … and OTHER people work even harder to dive right into the meat grinder under their own steam.

    I’ve noticed, in my career, that sometimes people just don’t have the mental energy, or the emotional resources, or whatever, to take a step that will save them a lot of grief. I’ve experienced it myself.

    I’ve also noticed that sometimes people do something obviously self-destructive in order to have, for one fleeting moment, the sense that they had some control in their lives. I’ve experienced that myself, too.

    I don’t think it’s a measure of character, or at least, not by itself. I think it’s a very rough measure of how wounded, or used up, a person is. It’s an alarm claxon for exhaustion and injury.

    Grace

  96. 98
    Susan says:

    Court reform is a very interesting topic, and as you point out, Brian, we’re way overdue.

    Here’s how it has always worked. Our legal system was sort of born in 1066. In England. So courts are established, and rules are made, and time goes on. As time goes on the process deteriorates. Things become insanely complicated; the table is tilted more and more towards the rich; public funding dries up.

    Then a wave of Reformers arrives to fix all this, and it does get fixed. Stupid rules are eliminated; matters are simplified; judges are hauled back into line; the rich are restrained; adequate funding arrives. Then the process of deterioration starts over. Rinse and repeat.

    In the last oh 500 years this has been running on a 100 to 150 year cycle. In the United States the last straightening-out happened in the late 19th century, give or take. So it’s time to do it again. We’re a mess. Justice, either civil or criminal, is hard to come by, not necessarily because people are badly motivated (well some of them are of course) but also because the system is so badly broken. This thread on this blog has explored only one small branch of this polluted river.

    One of the big problems this time around – maybe this is always a problem – is money. Public Defenders are inadequately paid, but that’s only the tip of the iceberg, and in many ways the least of our troubles. If you work at the court you know that staffing at all levels is woefully inadequate. Clerks, people who shuffle papers and keep the whole thing going, are scarce and badly paid. Everything takes way too long. Most of the litigants, both civil and criminal, have very little understanding of what is going on, that’s mostly because we’ve gotten back to “insanely complicated” again. That’s just where we are in the cycle.

    The rich have the table tilted well in their direction. If you have a business dispute, a contract problem, and the courts are too slow for you, you can hire a judge and get private justice outside the system. This happens a lot, and it’s a disincentive to fixing the system of justice that is supposed to be available for everybody. If you are accused of a crime, you know how to work the system, and you can hire “dream teams” of lawyers. How many wealthy white men are on death row, or in prison at all?

    Did we screw this one up? The Ferguson matter? I frankly don’t know. I wasn’t present at the original event, and I wasn’t on the Grand Jury, and I haven’t heard the evidence. The system is broken, but it is the system we have. I think we’re long overdue for a makeover. Are we willing to pay the price for it, in money and in social adjustment?

  97. 99
    Brian says:

    Grace, I agree. It’s not a character issue, it’s years of psychological scar tissue. BUT from the outside it leaves others standing there saying “Look, if you just stop hitting yourself in the head with that hammer, I’ll explain why brain-hammering is bad for you….”

    A social worker with more experience than me talked me down from a frustrated rant by saying “Invest yourself in the process and not the outcome.” Probably a good mantra for anyone trying to improve things slightly.

    I was explaining to someone I think is probably a right winger that BOTH cliches are kinda right. People need to want to change behavior, so the “Hunger is a motivation” conservatives are kinda right. But people need resources and guidance to change their behavior, so the “Throw money at the problem” progressives are kinda right too IMHO anyways.

    Motivation to change your life – tools and resources available to make the change + spoiled rich people nearby with tons of resources = highly motivated pirate crews and bandits about to make serious life altering changes.

    Has anyone heard of anyone harnessing this anger productively in ways OTHER than marching, chanting and burning local businesses BTW? Voter enrollment drives, 3rd party campaign committees, anything?

  98. 100
    Fibi says:

    The Federal indictment rate is a poor point of reference when evaluating the rarity of a Missouri grand jury returning a no-bill. Unfortunately, I can’t find the Missouri rates. But several states have no-bill rates that are orders of magnitude higher than the Federal rate (albeit, still rare).

    For example, after the Eric Garner grand jury returned a no-bill the Washington Post ran an article that provided context for that decision:

    On Staten Island, 3.2 percent of felony actions in 2013 resulted in a “no bill” decision. That includes “superior court informations,” which don’t go to a grand jury. Excluding SCIs, 5.1 percent of actions on Staten Island resulted in “no true bill,” and 4.3 percent did in all of New York State. It’s worth noting that Staten Island sees fewer cases than other boroughs; Brooklyn, which saw the most no bills, saw over seven times as many felony actions as Staten Island’s Richmond County.

    Amp’s larger point still resonates, but-at least in some jurisdictions-no bills are not so rare as to self-refute.