Friday, November 28, 2014

Yet Another Teachable Moment is Wasted

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. As a consequence, 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. - Antonin Scalia, 1992

One of the most conservative jurists, possibly in the world, in a Supreme Court case argued more than twenty years ago, defined perfectly what went tragically wrong in the Ferguson case. District Attorney Robert McCulloch eschewed the traditional role of prosecutor and turned the grand jury into a trial jury. Indeed, he sounded more like a defense attorney at his press conference. Look at the charge that was given to the grand jury:

"And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence."

If you're confused, imagine what the grand jury must've been thinking. Basically, McCulloch tied two distinct charges together and instructed the grand jury that if both were not true they had no choice but to no bill.  As someone who has sat on a criminal case as a juror, I find this incredible. I cannot conceive of any prosecutor being so stupid as to hamstring himself like that in front of a jury. Putting all one's eggs in a basket like that borders on prosecutorial negligence.

There's only one legitimate reason why any District Attorney would do such a thing. He simply didn't want an indictment. This is the fifth case that this prosecutor has taken against a police officer and the fifth time he has failed to get / seek an indictment. It is a well-established fact that if a prosecutor wants to indict someone, that person is indicted. Period! You've heard of the saying "You can indict a ham sandwich if you want?" Well, apparently, ham was not on the menu in Ferguson.

Once more the wheels of justice have driven over the African American community. In Sanford, Florida, an inept prosecuting team allowed George Zimmerman to get away with murder in an actual trial. This time, the prosecution didn't want to take a chance with a jury, so they soft-soaped what should've been a rigorous and thorough cross examination. Robert McCulloch did everything except kiss Darren Wilson on the lips during his testimony. Then, to make sure there were no loose ends that could gum up the works, he deliberately gave the grand jury an impossible task; one that only a trial jury would and should get.

I honestly do not know whether Darren Wilson is guilty of murder or whether he was a cop who simply panicked under pressure. Neither does anyone else. And that is the problem with what happened here. By no-billing, the grand jury didn't pronounce Wilson guilty or innocent. Instead there is this huge void that is left. The family of Michael Brown will never know true justice and the family of Darren Wilson will never know true vindication, in spite of what his supporters keep saying.

But, more importantly, a country that is bitterly divided just became more so. And here is perhaps the saddest thing of all: this issue isn't going away any time soon. By ignoring his duty as a prosecutor, Robert McCulloch not only did a disservice to the legal community, but the message such conduct sends will have profound repercussions throughout law enforcement as a whole.

Just the other day in Cleveland, a rookie cop shot a 12-year old black kid dead for brandishing a toy gun. The officer's report said he ordered the boy to put his hands in the air. A video taken of the incident, however, showed the cop car pulling up, the cop opening the door and immediately firing on the boy who then instantly fell to the ground. The boy, Tamir Rice, was pronounced dead at Metro Health Medical Center.

Based on the progression of events that are unfolding in this country, it wouldn't surprise me one bit if the cop ends up getting a ticket for speeding.


Prof. Walter Jameson said...


When this incident (in Ferguson) first came to light, I was damned-near certain that what this cop had done was a criminal offense. I heard the same reports that you probably did: Officer Wilson, inexplicably, tried to pull Mr. Brown into the car (through the car window); Mr. Brown was shot in the back while running away; Mr. Brown was shot several times while his hands were in the air in an act of surrender. Well, apparently, the reality of the situation turns out to be significantly different from those early reports. What I know now is that the officer's version of the events is corroborated by both credible eyewitness testimony and by the medical evidence. And that's why this matter needs to be looked at dispassionately, rationally and logically; and may, indeed, end up being a 'teachable moment', but not the one you were probably thinking.

So why did this prosecutor, McCulloch, even go through the motions with this concoction...this quasi-grand jury? The politics of the situation demanded it. A prosecutor is not going to bring a case before a grand jury that he strongly believes has no chance of a conviction at trial. And this was precisely that type of case. So, he presented it almost like a fact-finding. He gave the jury all the evidence in the case and let them decide what to do. The grand jurors also had the right to ask as many questions as they wanted throughout the entire process. McCulloch's charge, though specific and accurate on the rule of law, could've been ignored by the grand jury. They didn't do it, though. Why? They didn't do it because the evidence didn't even meet the low threshold of probable cause in *their* eyes.

You stated the following: "I honestly do not know whether Darren Wilson is guilty of murder or whether he was a cop who simply panicked under pressure. Neither does anyone else." Yes, but is there not another choice here? How about this: Wilson's version of the events was accurate. It's important to include that option because, after hearing ALL the evidence in the case, the grand jury obviously came to that conclusion.

Here are two 'teachable moments' that come out of this case: If you're walking down the middle of a street where you could be obstructing traffic and a cop gives you a lawful order to move to the sidewalk, you obey that order. Pretty simple, isn't it? 'Teachable moment' no. 2: It is never advisable to assault a cop at ANY time, but especially when he is in a defenseless posture sitting in his car. Not heeding the first one won't get anyone shot, but has the potential to greatly escalate the situation in a very bad way. Not heeding the second one will likely bring a tragic outcome.

Just a few words on the incident involving the 12-year old child in Cleveland. You said that the cop opened the door of his car and immediately fired on the boy. I disagree. From what I saw (looking at it twice from the City of Cleveland feed), the cop didn't even open the door before he started firing his weapon and, I agree, he certainly didn't have any time to say "Put your hands up" to the kid before he shot him dead. This one is truly bad .... very bad.

Thank you for the opportunity to respond.

Steven J. Wangsness said...

^^^^ What he said. I'm so sad to see the left once again making the same mistake of grabbing on to a cause without actually taking a clear, hard look at it first. And then sticking to it no matter how many uncomfortable facts come forth undermining the premise.

This whole business began with a big lie that Brown was shot while his hands were up in the air in the act of surrender, a notion now destroyed by actual forensic evidence as well as credible eyewitness testimony. The whole notion of him as a "gentle giant" is belied by his strong-arm robbery in the convenience store. And where oh where is any evidence -- any evidence -- that Wilson has any history of using excessive force, is a racist or anything of that sort? None that I have heard.

The continuing fuss over Ferguson is unfortunately another case of the left following the party line regardless of its relation to reality, from the Rosenbergs (guilty) to Che (a homicidal psychopath) to Mumia Abu-Jamal (also guilty). All it does is hurt the left's credibility and let the right dismiss the very real problems with police interactions with young black men, poverty, etc.

Anonymous said...

" What I know now is that the officer's version of the events is corroborated by both credible eyewitness testimony and by the medical evidence."

The officers evidence was also contradicted by credible eyewitness testimony, and the medical evidence was also consistent with murder, which is why it should have gone to a trial.

I would point out, since the cop never wrote a report, or gave a statement immediately following the death, he could quite easily come up with a story that was consistent with the medical that was already out, that would explain how Brown came to be shot in the back and top of his head while apparently holding his hands in the air.