“On Trial, In Absentia”: No Presumption Of Innocence For Michael Brown
It’s not clear how effective the instinctive effort to put Michael Brown posthumously on trial for being an African-American teenager who was “no angel” will turn out to be. It was begun, of course, by the Ferguson police as soon as was humanly possible; their “investigation” of the shooting was from the get-go aimed at justifying it as an act of self-defense, much like George Zimmerman’s, by a man being forced to use his deadly force in an encounter with a demonically powerful (if unarmed) black adolescent.
As one might expect, Ta-Nehisi Coates has said pretty much everything that needs saying about the assumption that Michael Brown deserved to die for his sins:
A large number of American teenagers live exactly like Michael Brown. Very few of them are shot in the head and left to bake on the pavement.
But this isn’t just about how the court of public opinion deals with this case. At some point, unless Darren Wilson just skates, it will be litigated in a court of law, presumably before a jury, in which he will formally enjoy the presumption of innocence so many people would apparently deny Brown.
Something about a parallel case from the distant past kept nagging the back of my mind, and sure enough, I found a 1979 Texas Monthly account account by Gary Cartrwright of the acquittal of two Houston cops for killing a black man, thanks to the skill of their attorney, Richard “Racehorse” Haynes, in putting the victim on trial:
[The] two Houston cops…were accused of kicking a black man to death after arresting him for attempting to “steal” his own car. The cops had already been acquitted by a district court in Houston — now they were being tried in federal court on charges that they had violated the man’s civil rights. For starters, Haynes got the trial moved from Houston to the conservative German American town of New Braunfels. “I knew we had that case won when we seated the last bigot on the jury,” Racehorse remarked later. As the trial progressed, Haynes developed these scenarios: (1) that the prisoner suffered severe internal injuries while trying to escape; (2) that he actually died of an overdose of morphine; (3) that the deep laceration in the victim’s liver was the result of a sloppy autopsy.
Sound familiar? Give a sympathetic jury an alternative theory they can seize on, however implausible, and they just might take it–particularly if the defendant is an officer of the law and the victim–who will be described as a victim of his own excesses–fits the jury’s idea of the people cops are hired to keep under control.
Maybe we’ve made some progress since 1979. But I’m not so sure.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, August 26, 2014
“Making A Just Outcome More Likely”: The Prosecutor In The Michael Brown Case Must Go
Lots of people in and around Ferguson, Missouri, don’t trust Robert McCulloch, the prosecutor who is presenting the facts about Michael Brown’s killing to a local Grand Jury. In fact, more than 70,000 of them have reportedly signed an online petition calling for the appointment of a new, special prosecutor to replace him.
These critics have their reasons. They think McCulloch’s record suggests that he is unlikely to construct an aggressive case against Darren Wilson, the white police officer who shot and killed Brown, who is black. And without a serious effort at prosecution, these people say, a Grand Jury is more likely to conclude the case is too weak to pursue.
I don’t know if that assessment of McCulloch and his motives is correct. I also don’t think it matters. McCulloch should step aside.
I don’t say this because I’m sure that Wilson is guilty or deserves indictment. On the contrary, the precise circumstances of Brown’s death still seem murky. Pretty much everybody seems to agree on how the incident began twelve days ago—with Wilson stopping Brown in the street, an altercation ensuing, and then Wilson firing at Brown as he gave chase to him. But the witness accounts that have become public so far diverge on a few key points, including what Brown was doing when he eventually stopped and turned. At that moment, when one of Wilson’s bullets delivered a fatal blow to Brown’s head, was the 18-year-old trying to surrender? Or was he charging at Wilson? The angle of the shot has gotten a lot of attention, because it suggests that Brown, who was six-foot-four, had lowered his head before getting hit. But that could actually be consistent with either of the theories.
The twelve-member Grand Jury will eventually get to see more evidence. It will get the results of ballistic tests, for example, and it will hear a much fuller range of witness testimony than anybody in the public has heard so far. But more evidence won’t necessarily clarify what happened—or whether Wilson should face criminal charges. Not everybody will remember the event the same way. Tests can be inconclusive or contradict one another. The Grand Jury will ultimately have to decide whether there is “probable cause,” but that’s a pretty fuzzy standard and open to interpretation. Inevitably, a lot will depend on what kind of case the prosecutor decides to present.
The issue with McCulloch isn’t whether he’s capable of mastering and presenting the material. It’s whether he’ll do so in an impartial way. Prosecutors are always close to police, because they work closely on investigations. But McCulloch seems to have particularly strong feelings—strong enough that, when Governor Jay Nixon called in the state highway patrol to take over security in Ferguson a week ago, McCulloch criticized Nixon strongly and publicly. “It’s shameful what he did today, he had no legal authority to do that,” McCulloch said. “To denigrate the men and women of the county police department is shameful.”
One reason McCulloch may feel so strongly about cops is that several relatives have served on the force. (One of them, McCulloch’s father, died in the line of duty when he was shot by an African-American.) Critics have also taken note of a 2001 statement McCulloch made, in a controversial case of police shooting two unarmed men. McCulloch called the victims “bums.” McCulloch presented that case to a Grand Jury. It declined to indict.
“Nobody thinks Michael Brown can get a fair shake from this guy,” Antonio French, a St. Louis alderman, told the New York Times. “There is very little faith, especially in the black community, that there would ever be a fair trial.” McCulloch has bristled at such criticism and pledged to see the case through. “I have absolutely no intention of walking away from the duties and responsibilities entrusted to me by the people in this community,” McCulloch said in a radio interview. “I have done it for 24 years, and I’ve done, if I do say so myself, a very good job.”
It’s entirely possible that a fair-minded Grand Jury will conclude the evidence doesn’t justify an indictment, let alone a conviction, at least according to the legal standards of Missouri. As my colleague Yishai Schwartz has written, the state’s laws make it unusually difficult to convict a police officer who claims that he fired in self-defense. But the difficulty of the case is precisely why McCulloch shouldn’t be the one presenting it. It needs a prosecutor whose intentions and motives are not in doubt. Otherwise, people will assume a decision not to indict reflects lack of prosecutorial effort, rather than the facts of the case.
McCulloch has said that he will step aside if Nixon asks him to do so. Nixon (whose own motives are open to question) has declined to take that step, arguing that it would exceed his authority. It’s not clear exactly how far the governor’s power extends in cases like these. I’ve read and heard different accounts about what Missouri law allows. But nobody questions that McCulloch can decide to recuse himself, clearing the way for Nixon to name a special prosecutor.
McCulloch should seize the opportunity. It would demonstrate that he has the integrity some think he lacks. It would also make a just outcome more likely.
By: Jonathan Cohn, The New Republic, August 21, 2014
“An Opportunity For Change”: Could The Ferguson Conflict Produce Actual Reform On The Limits Of Policing?
Every once in a while, a dramatic news story can actually produce real reform. More often the momentum peters out once the story disappears from the news (remember how Sandy Hook meant we were going to get real gun control?), but it can happen. And now, after the aftermath of the killing of Michael Brown in Ferguson, Missiouri, turned to a chaotic nightmare of police oppression, we may have an opportunity to examine, and hopefully reverse, a troubling policy trend of recent years.
The focus has now largely turned from an old familiar story (cops kill unarmed black kid) to a relatively unfamiliar one, about the militarization of the police. The images of officers dressed up like RoboCop, driving around in armored assault vehicles, positioning snipers to aim rifles at protesters, and firing tear gas and rubber bullets at Americans standing with their hands up saying “Don’t shoot!” has lots of Americans asking how things got this way. This issue offers the rarest of all things, an opportunity for bipartisan cooperation.
One member of Congress, Rep. Hank Johnson, has already said he’ll be introducing a bill to cut back on the 1033 program, under which the Department of Defense unloads surplus (and often brand-new) military equipment to local police departments at little or no cost. So for instance, a town might be able to acquire a Mine Resistant Ambush Protected vehicle (MRAP), designed to protect soldiers against roadside bombs and worth hundreds of thousands of dollars, for two or three grand. Radley Balko found towns with as few as 3,900 residents that had acquired an MRAP.
In the past, all that firepower has usually been directed at individuals—the person suspected of selling drugs who’s sitting at his kitchen table when a SWAT team made up of local cops, fancying itself Seal Team Six taking down Osama bin Laden, comes barrelling through the wall. But in Ferguson, a militarized police force was unleashed on an entire community.
On Thursday, Rand Paul wrote an excellent op-ed in Time magazine on both the militarization of law enforcement and the unequal treatment of black Americans by the police. As I’ve suggested elsewhere, this would be a great opportunity for a liberal who, like Paul, has something of a national constituency—let’s say Elizabeth Warren—to join with him and push for a bill, whether it’s the Senate version of what Hank Johnson is proposing or a different way to accomplish a similar set of goals.
So could they actually come together? This is unlike Sandy Hook for one big reason: in that case, there were powerful interests standing in the way of change. It wasn’t just the power of the NRA that stopped any gun reform from happening, it was the fact that almost no elected official in the Republican party wanted it either. That’s not the case here—as much as cops might like these shiny toys that make them feel like warriors, there isn’t a core interest of the GOP at work.
On the other hand, there are limits to what the federal government can do. The militarization of the country’s police forces is something that has been growing for a couple of decades, fueled first by the War on Drugs and then by the insane idea that the police in every hamlet in every corner of the country needed to be able to wage battles against Al Qaeda strike teams. Congress could turn off the spigot that pours this equipment into these communities, but unless the federal government starts repossessing the equipment it already distributed (highly unlikely, to say the least), police departments all over the country will still be awash in military gear.
And that’s the biggest challenge: the problems the Ferguson case highlights are widely distributed, through thousands of police departments and millions of interaction between cops and citizens. The federal government can respond in a limited way to what we’ve all seen, but its actions will go only so far.
But I can’t imagine there’s a police chief anywhere in America who hasn’t looked at this situation and concluded that the Ferguson police completely bollixed it up. They also can’t help but notice what happened when the Ferguson police were told to stand down in favor of the Missouri state troopers, who didn’t bother with the riot gear or armored personnel carriers, but just went out and listened to people, and the result was so different. So maybe some of those police chiefs will examine their own policies, when it comes to both using that equipment and dealing with crowds of protesters. Ferguson surely won’t change everything. But it might be a start.
By: Paul Waldman, Contributing Editor, The American Prospect, August 15, 2014
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