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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

“Is This Just The Beginning?”: Raging Protesters Set Ferguson on Fire

It’s nearly impossible to capture the pain, frustration, and sadness in Ferguson following the announcement that a white cop will not be charged for shooting an unarmed black teen three months ago. But if the faces partially hidden by gas masks and bandanas are any indication, last night’s events can be summed up by one simple word: rage.

“I guess it’s legal for police to kill unarmed black men now,” said one woman, defiant but in despair.

For many of those gathered, the grand jury’s verdict didn’t even really matter—it was the expected outcome of a system that works against them. “We already know what they’ve decided,” said one man outside the Ferguson Police headquarters before St. Louis County Prosecutor Robert McCulloch had approached the microphone.

A few optimistic souls had not yet given up hope. “It’s never happened, but that doesn’t mean it couldn’t happen,” said one. But when the announcement came, there was no surprise: Officer Darren Wilson will not stand trial for killing a teenager.

The reaction of the crowd wasn’t a surprise either. It started with chants. Then taunts. A few water bottles tossed at police. Tear gas. Smoke. Random gunfire. Arson and looting.

They flipped a cop car and torched it not far from the police station; flames reflected in the glass of storefronts that hadn’t been boarded up in the downtown shopping district, which is dotted with “Welcome to Historic Ferguson” signs. They fled from tear-gas canisters hissing through the air underneath the words “Seasons Greetings” that joined white lights and garlands on street lamps.

The crowd began to chant: “We gonna burn the shit down.”

A few protected stores from fellow residents and one man pleaded tearfully as water bottles flew over his head at police, but a mob mentality took over on South Florissant. That was nothing compared to the utter destruction going on across town. There, on the strip of West Florissant, which is now so familiar to protesters and TV news viewers, the night sky was lit by an inferno. Several, in fact. A storage building became a ghostly concrete frame lit bright orange. A small fire in an auto parts store created explosions that quickly got out of control. Black smoke rolled through the front door and the entire structure was gone to Hell in minutes. Business owners swept up glass in front of their barber shop. Next door, a strip mall popped and hissed as unknown accelerants aided in its fiery destruction.

“This was probably worse than the worst night we ever had in August,” said Jon Belmar, chief of the St. Louis County Police Department, who claimed to have heard 150 gunshots.

In truth, the genesis of these scenes that shocked the country came three months ago when residents of the apartments on Canfield Drive saw Mike Brown lying motionless and bleeding while Ferguson’s cops looked on.

Anger rose through the summer, as the names of more victims added fuel to the fire; starting as Twitter hashtags and making their way on to signs and T-shirts worn by the protesters in Ferguson—VonDeritt Myers and Kajieme Powell. Eric Garner and Ezell Ford. Then last week, a 12-year-old in Cleveland shot dead for holding a toy gun. A 28-year-old gunned down in a dark, New York City hallway by a rookie cop who apparently made a fatal mistake.

They were all Mike Brown, said the protesters. “We are,” the chant goes, “Mike Brown.”

The chanting—so much a part of protests here for the past 100-plus days—was sporadic through Monday night. As looters roamed, you could hear a few of the refrains that have defined this situation, most notably “No justice, no peace.” The phrase took on a greater sense of immediacy as chaotic midnight approached, with the streets belonging mostly to whomever wanted to take them. For a while it seemed like the cops didn’t. The destruction appeared random; it’s impossible to tell why some businesses were spared and others were torched. Although in at least one instance, there was discussion of saving black-owned shops. The Ferguson Burger Bar—a favorite among protesters—was spared despite having never boarded up. Across the street, Ferguson Market and Liquor, the convenience store that was home to Brown’s alleged robbery, was again wide open to pillagers. The tear gas smoke that consumed West Florissant in August—a sign of police oppression for some—was replaced by black plumes coming from the burning businesses.

Protesters simply trashed the place. But I didn’t see any smiles. It was an unfiltered anger that drove them to bust windows and set the flames that would consume a recognizable portion of their community. For the most part, the police simply backed off. And with the streets filled with protesters, gunfire ringing out in the air, the situation was too dangerous for firefighters to do their job.

So Ferguson watched itself burn.

For the young man’s defenders, this country’s sins—past and present—are the reason for his death and subsequent slandering in the media. The loss of his life, and all the others from this summer, back to Trayvon and well before that, are part of a pattern. But for one young woman, who recognized her chance to give a passing quote, Brown’s death is indicative not of an ending, but the start of something. What that is remains unclear.

In front of an engulfed auto parts store, surrounded by mayhem, she shouted five words before disappearing into the crowd: “This is just the beginning.”


By: Justin Glawe, The Daily Beast, November 25, 2014

November 26, 2014 Posted by | Civil Rights, Ferguson Missouri, Michael Brown | , , , , , | Leave a comment

“Lift Yourself Up”: Rand Paul Wants To Prevent Another Ferguson By Scolding The Poor

Rand Paul begins his Time op-ed about Ferguson with a good point: One concrete way politicians can lessen discrimination in the criminal justice system is by reforming policing practices and the war on drugs. “Michael Brown’s death and the suffocation of Eric Garner in New York for selling untaxed cigarettes indicate something is wrong with criminal justice in America,” the Kentucky senator writes. “The War on Drugs has created a culture of violence and put police in a nearly impossible situation.”

But Paul’s meandering argument unravels from there. Going into full libertarian mode, he writes that “we all hold a certain degree of responsibility for our lives and it’s a mistake to simply blame others for our problems.” He says, unbelievably, that “no law” can possibly reform the criminal justice system. Then he points to the “link between poverty, lack of education, and children outside of marriage is staggering and cuts across all racial groups.”

It sounds a bit like another one of his rambling speeches. And then there’s this:

I have no intention to scold, but escaping the poverty and crime trap will require more than just criminal justice reform. Escaping the poverty trap will require all of us to relearn that not only are we our brother’s keeper, we are our own keeper. While a hand-up can be part of the plan, if the plan doesn’t include the self-discovery of education, work, and the self-esteem that comes with work, the cycle of poverty will continue.

Paul is essentially arguing that escaping poverty is not just a matter of criminal justice reform, but of character reform, too, on both the individual and community level. Of course, in scolding the poor, he also manages to scold government assistance. Lift yourself up, he’s saying, because the government can’tand shouldn’tdo it for you.

Paul’s references to “lack of education” and single parenthood are the only nods toward the systemic socioeconomic issues that make it so hard to escape poverty. And character’s hardly the reason for it. For starters, it’s the lack of job training and opportunities, inner-city schools’ inability to attract top talent, and the struggle to put enough food on the table (the link between learning and nutrition is well documented). And guess who has the power and means to address many of these problems? The very government whose laws Paul has no faith in.


By: Rebecca Leber, The New Republic, November 25, 2014

November 26, 2014 Posted by | Ferguson Missouri, Poverty, Rand Paul | , , , , , , , | Leave a comment

“Darren Wilson Walks”: No Indictment For Michael Brown’s Killer

Officer Darren Wilson will not face charges for the killing of Michael Brown in Ferguson, Missouri. The news came on Monday evening, when prosecutor Robert McCulloch announced that a twelve-member Grand Jury had declined to deliver an indictment.

The news brought to a close three months of deliberation, but not the controversy over what happened that dayor the national conversation over race and law enforcement that Brown’s killing started.

The August 9 shooting of Brown, who was black, by Wilson, who is white, set off protests and violent confrontations with police that lasted weeks. Behind those protests were long-standing grievances against Ferguson police and its political establishment. Residents of Ferguson, roughly two-thirds of whom are black, said they were routinely mistreated by members of the police department, which is overwhelmingly white. Among the evidence they cited: Statistics showing that African-Americans constituted a disproportionate share of traffic stops (86 percent) last year.

But exactly what happened on the streets of Ferguson that August day has never been clear. Everybody agrees that Wilson stopped Brown and a friend in the middle of the streetand that some kind of altercation followed. But there are different stories about when exactly Wilson shot Brown and under what circumstances. A key question has been whether Wilson felt that Brown posed a threat, to either the officer or to others.

The Grand Jury considered five separate charges, ranging from involuntary manslaughter (which is basically killing because of recklessness, and carries a maximum sentence of seven years) all the way up to first degree murder (which is basically killing with premeditation, and carries a maximum penalty of life). McCulloch, in a prepared statement, said that the Grand Jury became convinced by reams of evidenceincluding physical evidence and eyewitness testimonythat Wilson had reasonable grounds for shooting.

He added that eyewitness testimony was sometimes contradictory, and that some people changed their stories once confronted with physical evidence that undermined it. McCulloch also chastised media for reporting incomplete or incorrect evidence while the Grand Jury was deliberating.

McCulloch expressed sympathy for the Brown family and recognized that some would not accept the verdict. “I join with Michael Brown’s family,” McCulloch said, “in urging everybody to continue the demonstrations, continue the discussions, and address the problems in constructive rather than destructive way.”

By the time McCulloch made his announcement, most observers expected the Grand Jury to decide as it did. As Yishai Schwartz has explained in these pages, the law in Missouri and other states makes it difficult to convict police officers of murder, at least when the officers claim they acted in self-defense. As Gabriel Chin, a professor at the University of California-Davis, told the New Republic

The Ferguson grand jury’s decision not to indict was no surprise.  “A grand jury will indict a ham sandwich,” the saying goes, but that never applied to police.  Of course, society requires police to carry guns and orders them to use them when necessary; therefore, they get the benefit of the doubt in close cases.  I can’t recall an on-duty police officer being charged for homicide without clear and strong evidence of criminality; ambiguous, unclear, even suspicious circumstances are insufficient.

But critics have worried that McCullochwho has close ties to the police department and whose father, a former officer, was killed by an African-Americanwould not pursue charges as vigorously as he could. McCulloch presented the Grand Jury with a wide array of evidence, without pushing them in one direction or the other. He also had Wilson testify in person. These choices were in some ways true to the original idea of a Grand Jury, which is supposed to be an investigative body. But they are relatively uncommon these days, since prosecutors more commonly use Grand Jury proceedings to build a case for indictmentsleaving ultimate decisions of guilt and innocence to a trial. According to Chin,

If the prosecutor had wanted to bring charges, he could have proceeded by filing an information charging the officer with an offense, which would have resulted in a preliminary hearing before a judge who would have determined whether probable cause existed.  To proceed by grand jury rather than information and preliminary hearing meant that the prosecutor believed charges were unwarranted, but that he wanted the grand jury to at least share responsibility for the decision.  Under the circumstances, there is every reason to think that the prosecutor presented all relevant facts; early on, the prosecutor said he expected the testimony and other evidence to be released; if the presentation was biased or half-hearted then there will be consequences.

The prosecutor did err in his statement when he said “The duty of the grand jury is to separate fact from fiction.”  The grand jury is obliged to determine whether there is probable cause, not what the actual truth is.

National polls have found a sharp racial divide on the case, with non-whites much more likely to favor indictment. It would have taken the votes of nine grand jurors to make Wilson stand trial and just three of the jurors are African-American. But it’s not clear whether voting broke down along racial lines and, at this point, nobody but the jurors know what evidence was made availableand how convincing it might have been. McCulloch has said he plans to make the evidence public, for the sake of transparencymaybe as soon as tonight.

This is not the end of the legal saga. Wilson is subject to a federal investigation, to see whether he violated Brown’s civil rights. Most experts think he’s unlikely to be charged, as that’s even harder to prove than the direct criminal charges.

But the Ferguson police department is also under investigation, from the Justice Department, and that investigation could very well end in some kind of “consent decree” under which the police changed policies under close federal supervision. It’s happened that way in other jurisdictions where police have come under attack for mistreating racial minoritiesand, as Rebecca Leber has noted, many experts think such arrangements have produced better policing and improved community relations.


By: Johnathan Cohn, The New Republic, November 24, 2014

November 25, 2014 Posted by | Darren Wilson, Ferguson Missouri, Michael Brown | , , , , , , | Leave a comment

“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 agowith 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 happenedor 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 feelingsstrong 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

August 23, 2014 Posted by | Ferguson Missouri, Michael Brown | , , , , , , | Leave a comment


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