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“Bill Cosby, Tamir Rice, And The Power Of Prosecutors”: The Discretion Of A Single Unaccountable Prosecutor

What do Bill Cosby and Tamir Rice’s have in common? Their cases reveal the immense power of prosecutors.

Consider the fact that in 2005, Andrea Constand told police that Bill Cosby gave her drugs and sexually assaulted her. Why wasn’t he charged? The prosecutor didn’t think there was enough evidence.

Ten years later, Cosby is charged. Why? Partly because of new bits of evidence—Cosby’s admission that he sometimes gave women drugs in order to have sex with them, and at least 50 other accusations against him. But mostly, because now there’s a different prosecutor, Kevin Steele.

These are judgment calls, in 2005 and 2015.

Now consider the cases of Tamir Rice, Michael Brown, and Eric Garner. None of the police officers responsible for their deaths were ever charged—not convicted—charged. In all three cases, prosecutors practically told grand juries not to indict.

In Ferguson, Robert McCulloch decided to simply present all the evidence to the grand jury, rather than make a case against Officer Darren Wilson. In Staten Island, Darren Donovan, a Republican with extensive ties to the police department, failed to secure an indictment against Daniel Pantaleo, whose chokehold led to Eric Garner’s death. And most recently, in Cleveland, Tim McGinty stated openly that he didn’t believe anyone should be charged in the shooting of 12-year-old Tamir Rice.

Set aside, for the moment, the facts of these cases. What’s striking in all of them is that county prosecutors and district attorneys, singlehandedly and without oversight, decide the fates of the accused. More judgment calls, unreviewed and unreviewable.

True, there is some oversight: most of these prosecutors are elected. If voters don’t like how they’re doing (or not doing) their jobs, they can vote them out of office. Indeed, in the case of Bill Cosby, then-D.A. Bruce Castor’s decision not to indict in 2005 became an issue in his election battle with Kevin Steele this year.

But is this really “oversight”? As The Daily Beast reported last September, voters often know next to nothing about the candidates running for positions as prosecutors or judges. Turnout is extremely low, especially in off years. And when voters are paying attention, they are bamboozled by the only campaign message that seems to work: “tough on crime.”

This year, for example, Steele ran on his “98 percent conviction rate” and “tough sentences for sexual predators.”

That’s what people want, right? They see prosecutors as agents of the criminal justice system, and everyone wants less crime.

This leads to two perverse incentives for prosecutors. First, they have an incentive to over-charge criminal defendants and secure convictions more than justice. Second, they have an incentive not to charge police officers, who after all are fighting crime every day, and with whom they work closely on a daily basis.

In principle, if Officers Pantaleo, Wilson, and Loehmann violated the law, then they are criminals. But in practice, they are policemen, and perceived as the opposite of criminals. Voters who want to get tough on crime do not want to get tough on cops.

So not only is there no meaningful oversight of prosecutors, but the oversight that does exist is skewed to specific outcomes and behaviors, not impartiality and performance.

Now back to Cosby. If you pay close attention to what Steele said this week, you’ll notice that he went out of his way to mention the new evidence that has come to light in the last twelve months. “A prosecutor’s job is to follow the evidence wherever it leads and whenever it comes to light,” he said, announcing the arrest.

In part, this was to explain the nearly twelve-year gap between the crime and the charge. But in large part, it was to explain why Cosby is being charged in 2015, but wasn’t in 2005.

And what is that new evidence? Only what is known as “habit evidence”: that Cosby admitted to drugging and having sex with other women. But not Constand—however ludicrous it may seem, Cosby’s position is that she consented.

Is habit evidence really enough to reopen a closed case and file charges? Again, that’s another judgment call. Like Judge Robreno’s decision to unseal the damning deposition records, Steele’s decision was basically up to him.

Of course, Steele chose to make it an election issue as well. He’d look foolish if, having just accused Bruce Castor of doing nothing, he did nothing too. But again, that was Steele’s decision. Just as prosecuting “America’s Dad” in 2005 might have made Castor look bad, prosecuting America’s Rapist in 2015 makes Steele look good.

We imagine that district attorneys and other prosecutors are motivated by truth, justice, and the American way. But in fact, they are elected officials who paint in broad strokes for a mostly-ignorant public; who, unlike judges, cannot be held accountable for their misconduct by oversight boards; and who exercise discretion so broad that the disposition of justice often lies entirely within their judgment.

Finally, of course, Tamir Rice and Bill Cosby have more in common than under-zealous prosecutors: both African American males, one quite young and one quite old, operating in a system in which 95 percent of prosecutors are white and local police forces are 88 percent white.

For decades, Cosby was protected by his wealth, celebrity, class, and connections, particularly at Temple University. But he is the exception, not the rule. Black men comprise 6 percent of the U.S. population, but 35 percent of the prison population. They receive sentences roughly 10 percent more severe than white defendants convicted of identical crimes. And when they are perceived to be older than they are, bigger than they are, more dangerous than they are, or more violent than they are, their 88 percent-white police officers and 95 percent-white-prosecutors exercise “discretion” in remarkably similar ways.

The United States is the only country in the world that elects prosecutors based on sloganeering and then holds them to no standard other than majority whim. After nearly 12 years, Bill Cosby has indeed been charged with a crime. But only because a prosecutor decided to do so—this time.

 

By: Jay Michaelson, The Daily Beast, January 1, 2016

January 3, 2016 Posted by | Bill Cosby, Prosecutors, Tamir Rice | , , , , , , , , , | 1 Comment

“Ethical Canons? So Much For Promises”: Tamir Rice Decision Shows; You Can Get Away With Murder

You can get away with murder.

You can shoot a child in an open park. You can lie about the incident. You can refuse to cooperate with investigators. You can, if a Cuyahoga County prosecutor and grand jury are to be believed, escape indictment even when the entire episode is captured on videotape.

Tamir Rice did not deserve to die. The man who killed him, Cleveland police officer Timothy Loehmann, will never spend a day in prison.

It has been 13 months since Rice was gunned at a Cudell Recreation Center last winter. He was carrying a toy gun, playing imagery games in the snow Nov. 22, 2014, when someone dialed 911 to report a “guy with a gun.” The dispatcher was advised that the “gun” was likely a toy.

Authorities promised a full and fair investigation. In the end, after months of fact-finding, a grand jury refused to indict Officer Loehmann or his partner Frank Garmback, even though the shooting was initially ruled a homicide.

Loehmann shot Rice once in the torso. But that wasn’t his only misdeed that night. Even after he and Garmback realized their mistake—after it dawned on them that Rice was a child, not a “guy,” armed with a toy, not a “gun”—neither man rendered medical aid, as the boy lay mortally wounded on the concrete.

When Rice’s older sister struggled to get to his side, they handcuffed and stuffed her into the back of their cruiser— rather than address her with the compassion she deserved. And, while Tamir lay dead in the morgue, the officers filed criminal charges against him.

During a press conference Monday, Prosecutor Timothy J. McGinty said he recommended that the panel decline to indict. McGinty claims that the officer’s actions were “not criminal,” but the result of “a perfect storm of errors.”

The grand jury, which has been meeting since October, agreed with McGinty.

But, who can believe the words of a man who once accused a grieving mother of attempting to profit from their child’s death?

“The law gives the benefit of the doubt to the officer who must make split-second decisions,” he told reporters, “when they reasonably believe their lives or those of innocent bystanders are in danger.”

“The Supreme Court,” McGinty proclaimed, “prohibits second-guessing police tactics.”

Throughout the Monday press conference, McGinty repeatedly referred to a “guy with a gun.” That “guy” was a boy who hadn’t been on his first date yet, never kissed a girl and now will never get married or have children of his own. He didn’t get the benefit of the doubt. Rice will not get a second chance or the opportunity to second-guess the actions of that officer.

A surveillance video shows Loehmann, the patrolman, a rookie with a troubled training record, shooting Rice within two seconds of encountering him. The shots rang out even before Garmback could bring the squad car to a full stop. Loehmann, according to investigators, ordered Tamir to drop his weapon—an AirSoft pellet gun that was tucked in his pants—multiple times. At least, that was the claim. But there was simply no time for him to have uttered those words, no time for Tamir to respond, no time for him to understand what was happening to him.

The gun was out of the holster before Loehmann got out of the car. Rice died the next day during surgery.

McGinty said during his press conference that Rice must have been scared. Maybe Loehmann was too. The question is: Was that fear “reasonable”? Would an appropriately trained and skilled police officer have made the same call? How did a police trainee fail multiple field and firearms tests and then go on to get a job with a neighboring department? When will that investigation begin?

It is nearly impossible to come up with any sympathy for Loehmann. He and Garmback no doubt spent Christmas with their respective families. Samira Rice, Tamir’s mother, spent that day—as she will every other—without her son.

“The death of Tamir Rice was an absolute tragedy,” McGinty explained. “But it was not, as the law that binds us, a crime…Bringing charges would violate the ethical canons” of the justice system.

We should not be surprised at the outcome.

Criminal charges against a police officer, suspected of brutalizing or killing a suspect, are extraordinarily rare—in Ohio and everywhere else in the country. When there is an indictment, the probability of a conviction is even smaller.

Convincing 12 people that a member of law enforcement acted with illegal force in the killing of a suspect is a steep hill to climb. When the officer is white and victim is black, the pathway to justice grows that much steeper.

However, if the roles had been reversed—if Tamir (who officers believed was in his “20s”) had shot a plainclothes Loehmann in a park because he feared for his life— we would have seen an indictment within days. Even in an open-carry state, Tamir would likely have been charged as an adult.

“We have never seen a prosecutor try so hard to lose a case,” said Jonathan S. Abady, a Rice family attorney, told The New York Times. The officers were reportedly allowed to read personal statements to the grand jury panel “without being cross-examined.”

McGinty is wrong. The law “that binds us” says a boy should be able to play in a public park without the fear of being shot. Failure to aggressively seek charges against the police officers involved violates “the ethical canons” of the justice system.

 

By: Goldie Taylor, The Daily Beast, December 28, 2015

December 29, 2015 Posted by | Criminal Justice System, Tamir Rice, Timothy Loehmann, Timothy McGinty | , , , , , | 1 Comment

“Breathe Easy, Respect The Presumption Of Innocence”: A Legal Precept That’s Never Been Terribly Popular

So the latest riposte in the war of t-shirt messages involving police shootings is this, via a report from TPM’s Brendan James:

A cop who owns a clothing business in Indiana has responded to protests over the police killing of an unarmed black man in New York with T-shirts reading: “Breathe Easy: Don’t Break the Law.”

The phrase was a play on the last words of the man, Eric Garner, after he was placed in a chokehold by New York City police officer Daniel Pantaleo in July: “I can’t breathe.”

Jason Barthel, a police officer and owner of South Bend Uniform, told television station WSBT the shirts were selling quickly.

“We are not here to do anything negative to the public,” he told the station “We’re here to protect the public and we want you to breathe easy knowing that the police are here to be with you and for you and protect you.”

The medical examiner ruled Garner’s death a homicide, but a grand jury on Dec. 3 decided not to indict Pantaleo in the death. Protesters demonstrating across the country in the wake of the decision have adopted “I Can’t Breathe” as a slogan.

One of the most disturbing aspects of the backlash to protests over the Brown and Garner’s killings is the underlying sentiment that both men assumed the risk of getting blown away by breaking the law. They were not convicted of anything in a court of law, and last time I checked, there is no state where selling black market cigarettes or stealing cigarillos or smoking reefer is a capital offense.

But the painful truth is, presumption of innocence is not a legal precept that’s ever been terribly popular. I may have told this story before, but the crusty old legal aid lawyer who taught the Criminal Procedure class I took in law school told us on the very first day: “Forget presumption of innocence. Your average juror looks at a defendant and says ‘Of course he probably did it. He’s up there in the dock, isn’t he?'” Mix in a little racism with this attitude, and it can provide a free pass for anyone–particularly anyone in a uniform–to get way out of line, since the victim “asked for it,” which means he or she isn’t really a victim at all, right? This needs to change.

 

By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, December 16, 2014

December 17, 2014 Posted by | Civil Rights, Police Shootings, Racism | , , , , , , | Leave a comment

“Where Anger And Fear Have Brought Us”: Children Are Children, No Matter Their Race Or Ethnicity

Darren Wilson made if very plain in his testimony before the grand jury that he was afraid of Michael Brown. As a matter of fact, his entire case is based on whether or not people believe that to be true. We also know that the officers who shot and killed 12 year-old Tamir Rice assumed that he was about 20 years old.

This is all part of a pattern that was recently the subject of research published by the American Psychological Association.

Black boys as young as 10 may not be viewed in the same light of childhood innocence as their white peers, but are instead more likely to be mistaken as older, be perceived as guilty and face police violence if accused of a crime, according to new research.

Beyond the Michael Brown’s and Tamir Rice’s, those assumptions also lead to this:

Fourteen states have no minimum age for trying children as adults. Children as young as eight have been prosecuted as adults. Some states set the minimum age at 10, 12, or 13…

Some 10,000 children are housed in adult jails and prisons on any given day in America. Children are five times more likely to be sexually assaulted in adult prisons than in juvenile facilities and face increased risk of suicide.

Whether they are being shot on the street, tried as adults, or locked up in adult prisons, Jonathan Capehart is right.

In America, black children are just that, children. It’s a damned shame people’s fears and prejudices blinds them to that fact. It’s a crying shame black kids must suffer because of it.

A lot of people are thinking that the one area where bipartisanship is possible in the next Congress is on criminal justice reform. But anything meaningful in that arena has to include the premise that children are children – no matter their race or ethnicity. A system that fails to treat them as such can never call itself “just.”

Bryan Stevenson, founder and director of the Equal Justice Initiative, brings it all together when he says that these kinds of policies are the result of “a political vision that is fueled by fear and sustained by anger.” He echoes President Obama in suggesting that we have to find a “voice of hopefulness to turn these things around.”

 

By: Nancy LeTourneau, Political Animal, The Washington Monthly, December 6, 2014

December 9, 2014 Posted by | Criminal Justice System, Police Shootings, Race and Ethnicity | , , , , , , , , | Leave a comment

“Two Grand Juries, The Same Disappointing Result”: The Criminal Justice System Is One Of The Last Bastions Of Blatant Racism

No expressions of sympathy or regret can resurrect Eric Garner, the New York City man killed by police in July. Garner died after an officer placed him in what appears to be a chokehold during an arrest for allegedly selling untaxed cigarettes, an offense not usually regarded as a capital crime.

But, at the very least, officer Daniel Pantaleo (or his representatives) showed a spark of decency after a Staten Island grand jury decided not to indict him for any crime. “I feel very bad about the death of Mr. Garner,” he said in a statement. “My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”

That’s just one contrast to events in Ferguson, Missouri, where Officer Darren Wilson showed no hint of sympathy for teenager Michael Brown or his family. “I don’t think it’s haunting. It’s always going to be something that happened,” Wilson said in a televised interview.

There were other equally stark contrasts. While Brown’s response to Wilson will always be the subject of dispute, bystanders recorded video of Garner’s arrest and posted it on the Internet, where it went viral. There is no disputing Garner’s tragic last words as Pantaleo’s arm lingers around his neck: “I can’t breathe. I can’t breathe.” Even Fox News’ bellicose Bill O’Reilly was moved to observe that Garner “didn’t deserve what happened to him.”

But the greatest contrast between the deaths of Garner and Brown may have been in the reactions of elected and civic leaders. Backed by its politicians, Ferguson’s police force responded to criticism of Brown’s death with excuses, equivocation and armored personnel carriers.

In New York City, Mayor Bill de Blasio took to the podium to express sympathy for Garner’s loved ones, and equally important, a simple shared humanity. Compassion. Understanding. Empathy. “This is now a national moment of grief, a national moment of pain,” he said. Members of Congress — liberals and conservatives, Republicans and Democrats — joined to criticize the grand jury’s decision.

That matters. All citizens, regardless of color or creed or religion, want to believe that the people who govern them share their fears, their hopes, their aspirations. Or, at the very least, that their leaders can understand their frustrations.

Even now, that’s not always the case in the United States, especially when it comes to law and order. The criminal justice system is one of the last bastions of blatant racism, a tangled net of explicit prejudices and implicit biases, of rank stereotypes and unfair perceptions, a web that ensnares black men disproportionately. Countless studies conducted by experts have borne out the view held by so many black Americans: We do not stand equally before the bar of justice.

Black motorists are subjected to more traffic stops than white drivers. Black men and women are arrested more often for drug offenses, even though we are no more likely to be drug users than whites. And the use of the death penalty tilts against black defendants and devalues black lives: It is more likely to be meted out if the victim is not white.

Has there been progress? Of course there has. The nation’s top law enforcement official, the attorney general, is a black man. But the nation’s criminal justice system started out in a hellishly low place — where officials were complicit in lynchings, where the wealthy extracted unpaid labor from black men by having them arrested, where black crime victims were ignored. De Blasio referred to that unfortunate history: “We’re not dealing with years of racism leading up to it, or decades of racism — we are dealing with centuries of racism that have brought us to this day.”

For all the striking contrasts between the reactions to the deaths of Brown and Garner, there was one stunning consistency: Grand juries saw no evidence of wrongdoing by a white police officer who killed an unarmed black man. Bear in mind that a New York City medical examiner, citing “compression of his chest and prone position,” ruled Garner’s death a homicide. Still, a Staten Island grand jury found nothing to suggest that Pantaleo committed any criminal offense.

Some things haven’t changed at all.

 

By: Cynthia Tucker, Visiting Professor, The University of Georgia, School of Journalism; The National Memo, December 6, 2014

December 7, 2014 Posted by | African Americans, Criminal Justice System, Racism | , , , , , , , , | Leave a comment

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