Saturday, December 06, 2014

184.9 - Outrage of the Week: No indictment in Ferguson

Outrage of the Week: No indictment in Ferguson

Now it's time for our other regular feature, the Outrage of the Week. And this week, I can bet you know what it it.

Okay, so it happened. Just as we knew it would - we kept hoping it wouldn't, but we knew it would. Which is why even though the taste is so bitter, the disappointment so sharp, there is no sense of surprise. Just the aching hurt of seeing it happen yet again.

Another black man - or black teenager - or black child - shot to death by another white cop. Another white cop walks.

It has long since become depressingly, disgustingly, predictable.

"No probable cause." Not even for involuntary manslaughter. "No probable cause."

Darren Wilson did nothing wrong when he shot down Michael Brown, we're told. Nothing at all. According to St. Louis County prosecutor Robert McCulloch, sounding like a defense attorney doing a final summation, he was just defending himself. He "feared for his life," so shooting Brown down and then leaving his body lying in the street for four hours, never even bothering to call paramedics, that was just, well, it was ... okay. Reasonable. Appropriate. He was just defending himself.

How do we know that's so? How do we know that's the truth of the matter? Because Darren Wilson is a cop. And Michael Brown, well, he was ... unimportant. Irrelevant. Just another black guy who got aggressive - or, often enough, just mouthy - with a white cop. And we all know - or are supposed to know and to accept - that in that case white cops can't be held responsible for what happens after that. Because the cop "followed procedure" or "acted within guidelines," procedures and guidelines that should result in cops' badge numbers starting with double-0, at least when dealing with young black men. Because there wasn't, there almost never is, "probable cause."

There is much more to talk about here, about the sloppy, error-filled non-investigation by the police, who didn't even bother to take measurements or photographs of the scene, about the fact that Wilson clearly changed his story between his initial police report and his testimony to the Grand Jury, about how his testimony invoked racist cliches about the superpowerful black man who made him feel like "a 5-year-old battling Hulk Hogan" and about the black man who looked like "a demon," and a whole lot more, but I will, for the moment at least, end with this:

The legal purpose of grand juries is supposed to be a check on arbitrary prosecutions, a way of making prosecutors show they have enough evidence to proceed to trial. For that reason, they usually only hear the prosecution case: If that's not good enough for trial, a defense case is unnecessary. But in this case, the prosecutor by his own account introduced "everything" - which means instead of providing any guidance, instead of providing a coherent narrative, instead of presenting a case for "probable cause," which is the only standard a grand jury has to meet to justify an indictment, he just dumped it all in the grand jury's lap and said "you figure it out." It also means, by definition, he introduced any exculpatory evidence or testimony they may have had, material that would normally be presented by the defense at trial, not by the prosecution.

As much as grand juries are in legal fantasy independent panels, they are in reality creatures of the prosecution.

In a famous quote from former NY State Judge Sol Wachtler, if they wanted to a district attorney could get a grand jury to indict a ham sandwich. In 2010, the most recent year for which we have records, US attorneys prosecuted 162,000 federal cases. Grand juries declined to return an indictment in precisely 11 of them.

Now, that's not exactly comparable to this case because those are federal grand juries and this is a state grand jury, but the point remains: A prosecutor who really wants an indictment can get one. And a prosecutor who really does not want an indictment and who has gone to a grand jury only because of political pressure or social protest and doesn't have the guts to admit they don't want one, can insure there isn't one.

I say here for the record that I will go to my grave convinced - and there are a good number of legal authorities including defense attorneys and former prosecutors who agree with me - that prosecutor Robert McCulloch wanted Darren Wilson to get off scot-free and manipulated the grand jury system to make that happen. And justice can go to hell.

And. That. Is. An. Outrage.

Sources cited in links:

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