“Re-Purposing The Grand Jury”: The St. Louis County Prosecutor Implicitly Conceded The Need For A Trial
Here is the irony of St. Louis County Prosecutor Robert McCulloch’s announcement Monday night that a grand jury had declined to indict officer Darren Wilson for the shooting of Michael Brown: The entire presentation implicitly conceded the need for a trial.
McCulloch was at pains to persuade the public that the grand jury had extensively weighed all the available evidence, and that it pointed to the conclusion that Wilson had not committed a crime. He talked about witnesses who changed their stories once they were presented with knowable facts that contradicted their original claims. He discussed the forensic evidence suggesting that Wilson’s initial shots against Brown occurred during a struggle in or near Wilson’s police cruiser, and that Wilson only began firing again after Brown, who’d initially fled, began moving toward him again. He talked about the lack of agreement over the position of Brown’s hands when Wilson fired the second, fatal barrage of shots.
So far as I know, McCulloch was under no obligation to discuss this evidence publicly. Nor was he under any obligation to release the evidence into the public domain following his remarks, as he repeatedly pledged to do. He presumably did these things to assure us that the decision not to prosecute Wilson was arrived at fairly and justly.
The problem with this is that we already have a forum for establishing the underlying facts of a case—and, no less important, for convincing the public that justice is being served in a particular case. It’s called a trial. It, rather than the post-grand jury press conference, is where lawyers typically introduce mounds of evidence to the public, litigate arguments extensively, and generally establish whether or not someone is guilty of a crime. By contrast, as others have pointed out, the point of a grand jury isn’t to determine beyond a shadow of a doubt what actually happened. It’s to determine whether there’s probable cause for an indictment, which requires a significantly lower standard of proof. That McCulloch appeared to turn the grand jury into an exercise in sorting out the former rather than the latter suggested he wanted no part of a trial.*
And, in fairness, it would have been extremely difficult to convict Wilson in a trial. But that’s a separate question from whether or not the verdict would be seen as legitimate after the fact. If McCullough was truly as concerned as he suggested tonight that the public accept the process that’s allowed Darren Wilson to walk away a free man, he had an obvious way to help ensure that this would happen. That he chose to avoid it demonstrates a rather appalling level of cynicism.
UPDATE: Some readers have argued that it would have been unethical for McCulloch to go to trial with a case he didn’t believe in. Two points in response: 1. Well, he went to the grand jury with a case he didn’t believe in, and it’s pretty unusual for that to happen, too. Clearly, the reason he did that was to make the process of letting Wilson off the hook look fair–again, not the typical purpose of grand juries, which are about establishing probable cause for an indictment. My point is that there’s a much better venue for establishing the fairness of the process (and for nailing down what actually happened)–a trial. Conversely, if this were simply about assessing probable cause, then the platonically correct move would have been to avoid a grand jury altogether, since McCulloch clearly didn’t think it exists. 2. Yes, it would have been hard to convict Wilson. But that doesn’t mean there wasn’t a case to be built. That McCulloch didn’t believe in the case says as much about him and his biases as it does the underlying facts. A different prosecutor could have easily come down differently.
By: Norm Scheiber, The New Republic, November 25, 2014
“Obligations To Justice”: Eric Holder And Robert F. Kennedy’s Legacy
When he announced his leave-taking last week, Attorney General Eric Holder spoke of Robert F. Kennedy as his inspiration for believing that the Justice Department “can — and must — always be a force for that which is right.”
There are many reasons our nation’s first African American attorney general might see Kennedy as his guide, but this one may be the most important: If ever a public figure was exempt from Holder’s much contested depiction of our country as a “nation of cowards” on race, it was RFK, a man who was in constant struggle with his demons and his conscience.
Few white men were as searing as Kennedy in describing how the world looked to a young black man in the late 1960s. “He is told that the Negro is making progress,” Kennedy wrote, following the racial etiquette of his time. “But what does that mean to him? He cannot experience the progress of others, nor should we seriously expect him to feel grateful because he is no longer a slave, or because he can vote or eat at some lunch counters.”
“How overwhelming must be the frustration of this young man — this young American,” Kennedy continued, “who, desperately wanting to believe and half believing, finds himself locked in the slums, his education second-rate, unable to get a job, confronted by the open prejudice and subtle hostilities of a white world, and seemingly powerless to change his condition or shape his future.”
Yet Kennedy was never one to let individuals escape responsibility for their own fates. So he also spoke of others who would tell this young black man “to work his way up, as other minorities have done; and so he must. For he knows, and we know, that only by his efforts and his own labor will the Negro come to full equality.”
Holder and his friend President Obama have lived both halves of Kennedy’s parable. Like social reformers in every time, they strived to balance their own determination to succeed with their obligations to justice. Doing this is never easy. It can’t be.
Kennedy was not alone among Americans in being tormented by how much racism has scarred our national story. That’s why I was one of many who bristled back in 2009 when Holder called us all cowards. For all our flaws, few nations have faced up to a history of racial subjugation as regularly and comprehensively as we have. And Holder and Obama have both testified to our progress.
Yet rereading Kennedy is to understand why Holder spoke as he did. That the young man Kennedy described is still so present and recognizable tells us that complacency remains a subtle but corrosive sin. One of Holder’s finest hours as attorney general was his visit to Ferguson, Mo., after the killing of Michael Brown. Many young black men still fear they will be shot, a sign that the “open prejudice and subtle hostilities of a white world” have not gone away. We have moved forward, yet we still must overcome.
Holder leaves two big legacies in this area from which his successors must not turn away. In the face of a regressive Supreme Court decision gutting the Voting Rights Act, he has found other ways to press against renewed efforts to disenfranchise minority voters. And it is a beacon of hope that sentencing reform and over-incarceration, central Holder concerns, are matters now engaging conservatives, libertarians and liberals alike.
The New York Times’ Matt Apuzzo captured the irony of Holder’s tenure with the observation that his time as attorney general “is unique in that his biggest supporters are also among his loudest critics.” Many progressives have been troubled by his record on civil liberties in the battle against terrorism, his aggressive pursuit of journalists’ e-mails and phone records in leak investigations, and his reluctance to prosecute individual Wall Street malefactors.
That these issues will long be debated is a reminder that Holder was first a lawyer and public servant, most of whose work had nothing to do with race. That he singled out Kennedy as his hero shows that none of us need be imprisoned by race. That Holder cajoled and provoked us on the need “to confront our racial past, and our racial present” is itself an achievement that transcends the color line.
Kennedy, who spoke of those who braved “the disapproval of their fellows, the censure of their colleagues, the wrath of their society,” would understand the risks that Holder ran.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, September 29, 2014
“The Usual Sorry For Your Loss”: Ferguson Police Chief’s Sad Excuse For An Apology
It took four hours for the police in Ferguson, Mo., to remove the body of Michael Brown, the unarmed teenager killed by a police officer, from the street where it lay. It took the police chief nearly seven weeks to issue an apology to Mr. Brown’s family. His videotaped comment was late, oddly staged and very unclear about what exactly he was apologizing for and why (apart from perhaps a desire to keep his job).
The videotape (http://nyti.ms/1BceEnw) by the police chief, Thomas Jackson, was bizarre in many ways. Appearing before an American flag and what looks like a city flag of Ferguson, he was not just in plain clothes instead of his uniform but he was wearing a golf shirt.
He started by talking about how the shooting of Michael Brown had sparked a national “conversation” about race and the role of the police “in that conversation.” Well, no. It sparked angry protests that were met by police armed to the teeth with automatic weapons, armored vehicles and tear gas. It sparked some rioting and looting. And it sparked outrage among African Americans around the country and not just in Ferguson, a suburb of St. Louis that is heavily black but has a town government and police force that is almost entirely white.
If that is Mr. Jackson’s idea of a conversation, I’d hate to see his idea of an argument.
Mr. Jackson allowed that Mr. Brown’s death was “the central issue that brought us here today.” And he said to the slain teenager’s family: “I’m truly sorry for the loss of your son. I’m also sorry that it took so long to remove Michael from the street.”
Please note: He’s not apologizing for the actual killing of Mr. Brown. He’s just offering the usual “sorry for your loss” that police offer people whose loved ones are killed – say in an automobile crash. And as for his apology for the four-hour delay in which the boy’s body lay on the street, that seemed pretty conditional too.
“The time that it took involved very important work on the part of investigators who were trying to collect evidence,” he said, adding that the investigators “meant no disrespect” and were “simply trying to do their jobs.”
He then apologized — actually seeming sort of sincere about it — to “peaceful protesters who did not feel I did enough to protect their constitutional right to protest.”
But it was not that you did not do enough to protect that right, Mr. Jackson, but you sent your small-town trained, big-war equipped cops out to deny them that right with the threat of deadly force.
As I said, I’m not sure why Mr. Jackson made this video. But it’s far too late, far too confused and far too self-serving to matter a whole lot.
By: Andrew Rosenthal, Taking Note, The Editorial Page Editors Blog; The New York Times, September 26, 2014
“When Whites Just Don’t Get It”: After Ferguson, Race Deserves More Attention, Not Less
Many white Americans say they are fed up with the coverage of the shooting of Michael Brown in Ferguson, Mo. A plurality of whites in a recent Pew survey said that the issue of race is getting more attention than it deserves.
Bill O’Reilly of Fox News reflected that weariness, saying: “All you hear is grievance, grievance, grievance, money, money, money.”
Indeed, a 2011 study by scholars at Harvard and Tufts found that whites, on average, believed that anti-white racism was a bigger problem than anti-black racism.
Yes, you read that right!
So let me push back at what I see as smug white delusion. Here are a few reasons race relations deserve more attention, not less:
- The net worth of the average black household in the United States is $6,314, compared with $110,500 for the average white household, according to 2011 census data. The gap has worsened in the last decade, and the United States now has a greater wealth gap by race than South Africa did during apartheid. (Whites in America on average own almost 18 times as much as blacks; in South Africa in 1970, the ratio was about 15 times.)
- The black-white income gap is roughly 40 percent greater today than it was in 1967.
- A black boy born today in the United States has a life expectancy five years shorter than that of a white boy.
- Black students are significantly less likely to attend schools offering advanced math and science courses than white students. They are three times as likely to be suspended and expelled, setting them up for educational failure.
- Because of the catastrophic experiment in mass incarceration, black men in their 20s without a high school diploma are more likely to be incarcerated today than employed, according to a study from the National Bureau of Economic Research. Nearly 70 percent of middle-aged black men who never graduated from high school have been imprisoned.
All these constitute not a black problem or a white problem, but an American problem. When so much talent is underemployed and overincarcerated, the entire country suffers.
Some straight people have gradually changed their attitudes toward gays after realizing that their friends — or children — were gay. Researchers have found that male judges are more sympathetic to women’s rights when they have daughters. Yet because of the de facto segregation of America, whites are unlikely to have many black friends: A study from the Public Religion Research Institute suggests that in a network of 100 friends, a white person, on average, has one black friend.
That’s unfortunate, because friends open our eyes. I was shaken after a well-known black woman told me about looking out her front window and seeing that police officers had her teenage son down on the ground after he had stepped out of their upscale house because they thought he was a prowler. “Thank God he didn’t run,” she said.
One black friend tells me that he freaked out when his white fiancée purchased an item in a store and promptly threw the receipt away. “What are you doing?” he protested to her. He is a highly successful and well-educated professional but would never dream of tossing a receipt for fear of being accused of shoplifting.
Some readers will protest that the stereotype is rooted in reality: Young black men are disproportionately likely to be criminals.
That’s true — and complicated. “There’s nothing more painful to me,” the Rev. Jesse Jackson once said, “than to walk down the street and hear footsteps and start thinking about robbery — then look around and see somebody white and feel relieved.”
All this should be part of the national conversation on race, as well, and prompt a drive to help young black men end up in jobs and stable families rather than in crime or jail. We have policies with a robust record of creating opportunity: home visitation programs like Nurse-Family Partnership; early education initiatives like Educare and Head Start; programs for troubled adolescents like Youth Villages; anti-gang and anti-crime initiatives like Becoming a Man; efforts to prevent teen pregnancies like the Carrera curriculum; job training like Career Academies; and job incentives like the earned-income tax credit.
The best escalator to opportunity may be education, but that escalator is broken for black boys growing up in neighborhoods with broken schools. We fail those boys before they fail us.
So a starting point is for those of us in white America to wipe away any self-satisfaction about racial progress. Yes, the progress is real, but so are the challenges. The gaps demand a wrenching, soul-searching excavation of our national soul, and the first step is to acknowledge that the central race challenge in America today is not the suffering of whites.
By: Nicholas D. Kristof, Op-Ed Columnist, The New York Times, August 31, 2014
“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
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