“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
“Suburbanization Of Poverty”: Tensions In Ferguson Have Been Simmering Below Surface For Decades
The police shooting of Michael Brown was the spark.
But the tinder fueling the anger and resentment that has exploded in Ferguson, Mo., has been building for decades.
The town has seen many middle-class homeowners who eagerly moved to St. Louis’ northern suburbs after World War II to buy brick ranch homes with nice yards leave, replaced by poorer newcomers. Good blue-collar jobs have grown scarce; the factories that once sprouted here have closed shop. Schools have struggled.
And local governments — slow to evolve – often now look little like the people they represent. For the black community, it creates a sense of lost opportunity in a place much like other aging suburbs in the Rust Belt and across the country.
“For a young black man, there’s not much employment, not a lot of opportunity,” said Todd Swanstrom, a professor of public policy at the University of Missouri, St. Louis. “It’s kind of a tinder box.”
The seething tensions prompted Missouri Gov. Jay Nixon to declare a curfew in Ferguson on Saturday, one week after a white police officer shot and killed Brown, an 18-year-old black man. The declaration followed another night of looting.
Critics say an initial heavy-handed response by police using tear gas and rubber bullets touched off the unrest, with mainly white officers facing off against mainly black crowds.
Since Brown’s death, race and police tactics have dominated the headlines blaring from this town 12 miles northwest of St. Louis’ Gateway Arch. But that’s only part of the story.
From jobs to schools to racial transition, Ferguson and its neighboring towns — where many protesters came from — have undergone sweeping changes in recent years. Some places have become pockets of poverty, comparable to the poorest spots in St. Louis.
Others, like Ferguson, remain more mixed, with middle-class subdivisions alongside run-down streets and big apartment complexes like the one where Brown lived. Either way, Swanstrom said, the area highlights the growing challenge of the “suburbanization” of poverty.
“This was a catalyst for something much deeper, the lack of economic opportunities and representation people have,” said Etefia Umana, an educator and board member of a community group called Better Family Life. “A lot of the issues are boiling up.”
It’s been boiling for decades.
St. Louis’ jumble of suburbs — there are 91 municipalities in a county of about 1 million people ringing the city — has long been sharply segregated. Until the late 1940s, restrictive covenants blocked blacks from buying homes in many of them.
Well into the 1970s, tight zoning restrictions and other rules, especially in places near the city’s mostly black north side, kept many largely white, said Colin Gordon, a University of Iowa professor who’s studied housing in St. Louis.
That began to change by the 1980s, when middle- and working-class white families began leaving north county — as the area around Ferguson is known — for newer, roomier housing further out in the exurbs. In their place came a flood of black families from St. Louis in search of better housing and schools.
“When black flight out of the city began, this was the logical frontier,” Gordon said. “It became what the city had been, a zone of racial transition.”
In Ferguson, the change happened fast. In a generation — from 1990 to today — the population changed from three-fourths white to two-thirds black. Even as the area’s demographics shifted, good blue-collar jobs sustained many of these towns, said Lara Granich, a community organizer.
“Everyone in our parish was a brick layer or a letter carrier or something. I didn’t know anyone who had gone to college, but they all made a decent living,” said Granich, who grew up in nearby Glasgow Village, another neighborhood on the decline. “The people who live there now tend to work at McDonald’s.”
The recession hurt, too. This part of the St. Louis region took the brunt of the foreclosure crisis, with subprime loans turning bad, and investors scooping up cheap houses to rent. Auto plants that had sustained a black middle-class shut down.
Since 2000, the median household income in Ferguson has fallen by 30 percent when adjusted for inflation, to about $36,000. In the Census tract where Brown lived, median income is less than $27,000. Just half of the adults work.
Fr. Steven Lawler, rector of St. Stephen’s Episcopal Church in Ferguson, really saw the change in 2008, when visits to his food pantry spiked. They haven’t gone down since.
“I know there are places where an economic recovery’s happening,” he said. “But in the places where people are most stressed, there hasn’t been a recovery.”
Still, as Lawler and others note, Ferguson has some things going for it. Its pleasant, old downtown has seen a revival in recent years, with a busy Saturday farmers market and a new craft brewery. It still has middle-class neighborhoods of historic homes. The headquarters of a Fortune 500 company — Emerson Electric Co. — sits on a serene campus just up the hill from the gas station looters burned a week ago Sunday night.
Gail Babcock, program director at Ferguson Youth Initiative, was quick to note her town still has a strong sense of community — and every morning last week volunteers have poured in to clean up from protests and looting. The challenge is in connecting its poorer residents – especially younger ones – to it.
“It’s very hard for them to find jobs,” said Babcock, who runs a community service program for youth convicted of minor criminal offenses. “That sets up a situation where they tend to get in trouble, and they probably wouldn’t under other circumstances.”
Then there are the schools, one reason why many families moved to these suburbs in the first place. Two north county districts – including the one where Brown graduated from high school in May — have lost their state accreditation in recent years. The district Ferguson shares with a neighboring town remain accredited but scores low on state tests.
That was a big reason why John Weaver took the morning off work Friday, drove his plumbing truck to Florissant, and asked the visiting Gov. Nixon what he planned to do about the problems that have plagued these neighborhoods for years.
Nixon acknowledged there’s “a lot of work to do.” Weaver was not impressed.
“All these politicians say they’ll fight for our education. I feel cheated,” he said in an interview later. “And if I feel cheated, how should these kids feel?”
These issues are all tied together for Shermale Humphrey, a 21-year-old who joined the protests last week. She plans to enlist in the Air Force, but right now works at a McDonald’s near where Brown was shot. She’s something of a veteran activist – helping to organize strikes by fast-food workers in St. Louis — and sees race and local politics and economics here as closely intertwined.
“It’s a shortage of everything,” she said. “It’s a shortage of jobs. Of African Americans on the police force and in government. Of people not being able to get a good education.”
Adding to the frustration, many protesters say, is that the people still running many of these downs don’t much look like the people who live there now. Just three of Ferguson’s 53 police officers are black. Six of seven City Council members are white. So are six of the seven school board members, who run a district with a student body that’s 78 percent black.
Many of these towns are still run “like little fiefdoms,” said Umana, who moved to Ferguson eight years ago, by remnants of their old white middle class that may not share the concerns of newcomers.
“The numbers flip-flopped, but the power structure remained the same,” he said.
It has been hard to build black political leadership in these fast-changing suburbs, said Mike Jones, a black veteran of St. Louis’ political scene. Indeed, it’s been harder than in St. Louis, which has long been racially mixed.
But a more diverse set of voices at Ferguson City Hall, Jones said, might have avoided the heavy-handed police response that only inflamed protests.
“The question is how — in a city that’s 67 percent African-American — do you have absolutely no African American political representation?” Jones asked. “That’s what leads you to a police force that could become involved in this sort of incident.”
It’s an issue more communities will have to face, Jones predicts, as traditionally “urban” issues of poverty and racial change migrate to suburbs often less-equipped to deal with them. And not just in St. Louis.
A study last month by the Brookings Institution found the number of poor people living in high-poverty suburban neighborhoods nationwide more than doubled in the last decade, growing much faster than in big cities.
Chris Krehmeyer, who runs St. Louis-based community development nonprofit Beyond Housing, says he knows colleagues around the country dealing with a lot of the same issues as he is in north St. Louis County, tackling housing and jobs and schools all at once. The key, he said, is to build trust with residents before the community blows up.
Ferguson is a bellwether, he said. “This story could happen in lots of different places, all over this country.”
By: Tim Logan and Molly Hennessy-Fiske, The Los Angeles Times; The National Memo, August 18, 2014
“Only One Of Many”: Missouri Keeps Tumbling Rightward
The Missouri legislature had no trouble passing a big tax cut today over the veto of Gov. Jay Nixon. As a Missouri native, I’m probably more irritated by this than most Times readers are, but my state is only one of many that have been sharply pulled to the right in the last few years. What’s happening in Jefferson City is already familiar to residents of Wisconsin, Michigan, Kansas, North Carolina, and many others.
The main difference is that Mr. Nixon is a Democrat, a relic of the days when his party dominated the state. But Republican leaders are working on that. Last month, they had a serious debate in the House on whether the governor should be impeached for allowing same-sex married couples to file joint tax returns. Gay and lesbian people can’t get married to each other in Missouri, which has a constitutional amendment prohibiting it, but Mr. Nixon had the temerity to allow the joint returns for couples married elsewhere.
“This is such a blatant and serious violation of Missouri’s constitution and Missouri law that the governor should be removed from office,” said Nick Marshall, a state representative from Parkville.
In case that didn’t work, there was another impeachment resolution filed that would have ousted Mr. Nixon for failing to properly discipline state workers who released a list of concealed gun permits to the federal government. The resolution began, “Whereas, the people of the State of Missouri cherish their right to bear arms…” and went downhill from there.
A few weeks ago, the legislature approved a measure that would nullify all federal gun laws and allow residents to sue federal agents for enforcing them. It carries no legal weight, and Mr. Nixon vetoed something similar last year, but the true believers apparently feel the need to re-establish their credentials repeatedly.
Although the impeachment efforts were dropped today, Republicans have managed to push through their agenda. As a Kansas City Star editorial noted, today’s tax cut doesn’t even benefit the people who could use the money the most. A family making $44,000 a year will get a $32 break, while one making $1 million will get $7,800. Most of the benefits, in fact, go to one special-interest group.
“It is a gift to businesses whose owners declare their business incomes on their personal tax forms,” the Star wrote. “Up to one-fourth of their income could eventually be tax-free if the bill becomes law, whether or not they create jobs.”
Naturally, Missouri isn’t coming close to fully funding its public school and university system, and is one of 20 states that refuses to expand Medicaid, turning down $2.2 billion from the federal government because that would mean accepting the reality of the Affordable Care Act. But when businesses raise their voices for a tax cut, they are answered.
It’s not the state I grew up in, which is exactly the way a new generation of leaders like it.
By: David Firestone, Editors Blog, The New York Times, May 6, 2014
“Crossing The Constitutional Line”: Gun Bill In Missouri Would Test Limits In Nullifying U.S. Law
Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.
The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.
The Missouri Republican Party thinks linking guns to nullification works well, said Matt Wills, the party’s director of communications, thanks in part to the push by President Obama for tougher gun laws. “It’s probably one of the best states’ rights issues that the country’s got going right now,” he said.
The measure was vetoed last month by Gov. Jay Nixon, a Democrat, as unconstitutional. But when the legislature gathers again on Sept. 11, it will seek to override his veto, even though most experts say the courts will strike down the measure. Nearly every Republican and a dozen Democrats appear likely to vote for the override.
Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”
In a letter explaining his veto, Mr. Nixon said the federal government’s supremacy over the states’ “is as logically sound as it is legally well established.” He said that another provision of the measure, which makes it a crime to publish the name of any gun owner, violates the First Amendment and could make a crime out of local newspapers’ traditional publication of “photos of proud young Missourians who harvest their first turkey or deer.”
But the votes for the measure were overwhelming. In the House, all but one of the 109 Republicans voted for the bill, joined by 11 Democrats. In the Senate, all 24 Republicans supported it, along with 2 Democrats. Overriding the governor’s veto would require 23 votes in the Senate and 109 in the House, where at least one Democrat would have to come on board.
The National Rifle Association, which has praised Mr. Nixon in the past for signing pro-gun legislation, has been silent about the new bill. Repeated calls to the organization were not returned.
Historically used by civil rights opponents, nullification has bloomed in recent years around a host of other issues, broadly including medical marijuana by liberals and the new health care law by conservatives.
State Representative T. J. McKenna, a Democrat from Festus, voted for the bill despite saying it was unconstitutional and raised a firestorm of protest against himself. “If you just Google my name, it’s all over the place about what a big coward I am,” he said with consternation, and “how big of a ‘craven’ I was. I had to look that up.”
The voters in his largely rural district have voiced overwhelming support for the bill, he said. “I can’t be Mr. Liberal, St. Louis wannabe,” he said. “What am I supposed to do? Just go against all my constituents?”
As for the veto override vote, he said, “I don’t know how I’m going to vote yet.”
State Representative Doug Funderburk, a Republican from St. Peters and the author of the bill, said he expected to have more than enough votes when the veto override came up for consideration.
Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions. Richard Cauchi, who tracks such health legislation for the National Conference of State Legislatures, said: “Since January 2011, at least 23 states have considered bills seeking to nullify the health care law; as of mid-2013 only one state, North Dakota, had a signed law. Its language states, however, that the nullification provisions ‘likely are not authorized by the United States Constitution.’ ”
What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws.
Mr. Levy, whose organization has taken a leading role in fighting for gun rights, said, “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”
Still, other states have passed gun laws that challenge federal power; a recent wave began with a Firearms Freedom Act in Montana that exempts from federal regulations guns manufactured there that have not left the state.
Gary Marbut, a gun rights advocate in Montana who wrote the Firearms Freedom Act, said that such laws were “a vehicle to challenge commerce clause power,” the constitutional provision that has historically granted broad authority to Washington to regulate activities that have an impact on interstate commerce. His measure has served as a model that is spreading to other states. Recently, the United States Court of Appeals for the Ninth Circuit struck down Montana’s law, calling it “pre-empted and invalid.”
A law passed this year in Kansas has also been compared to the Missouri law. But Kris W. Kobach, the Kansas secretary of state, disagreed, saying it had been drafted “very carefully to ensure that there would be no situation where a state official would be trying to arrest a federal official.”
In Missouri, State Representative Jacob Hummel, a St. Louis Democrat and the minority floor leader, said that he was working to get Democrats who voted for the bill to vote against overriding the veto. “I think some cooler heads will prevail in the end,” he said, “but we will see.”
Taking up legislative time to vote for unconstitutional bills that are destined to end up failing in the courts is “a waste of taxpayers’ money,” Mr. Hummel said, adding that more and more, the legislature passes largely symbolic resolutions directed at Congress.
“We’re elected to serve the citizens of the state of Missouri, at the state level,” he said. “We were not elected to tell the federal government what to do — that’s why we have Congressional elections.”
The lone Republican opponent of the bill in the House, State Representative Jay Barnes, said, “Our Constitution is not some cheap Chinese buffet where we get to pick the parts we like and ignore the rest.” He added, “Two centuries of constitutional jurisprudence shows that this bill is plainly unconstitutional, and I’m not going to violate my oath of office.”
Mr. Funderburk, the bill’s author, clearly disagrees. And, he said, Missouri is only the beginning. “I’ve got five different states that want a copy” of the bill, he said.
By: John Schwartz, The New York Times, August 28, 2013
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