Wednesday, November 26, 2014

Wilson, Maybe. Ham Sandwiches, No.

It seems Mike Huckabee on a "Reagan, Thatcher, Pope John Paul II tour" has suggested abortion is worse than the Holocaust.    That is ridiculous and offensive but, in our way, we on the left can spout our own nonsense. In our defense, however, it invariably comes from lesser lights, not from someone who has been a governor, presidential contender, or possible future aspirant. And so it is that Salon's Brittney Cooper yesterday wrote

Neither should we any longer submit to the disciplinary impulses of the “rule of law.” The rule of law wants to beat into us, through “discipline,” the belief that we –black people — would be animals but for its chastening rod of correction. The law stepped to a podium yesterday, under cover of night,  to tell us that it reserves the right to slaughter black men with impunity, that it seeks to coerce through threat of force, our permission to do so.

One can only hope Cooper's overheated response to the decision by the grand jury in Clayton, Missouri not to indict police officer Darren Wilson for anything in the killing of Michael Brown was meant to be hyperbole. It may have been, for it was not the "law," but rather St. Louis County prosecuting attorney Robert McCulloch. who stepped to a podium on Monday. Good writing, though.

Contrary to Cooper's imagination, the rule of law does not presuppose black people are "animals" who must be subject to a "chastening rod." Nor does the law apply to blacks alone. It is at times unequally applied- but if it is unequally applied by race, it also is unequally applied by geography, a reality Cooper evidently is completely unfamiliar with.  St. Louis County is not Cook County or L.A. County. Nor is it rural Alabama.

Were those Ms. Cooper's only mistakes, she could be forgiven.   But to claim the law "reserves the right to slaughter black men with impunity" is, truth, to tell, disgusting, more so even than her apparent displeasure that there has been no retaliation against the officer's family.  If the law reserved such a right, Darren Wilson's case would not even have been brought before the grand jury for possible indictment.  Further, there would be black men littering America's streets- for committing crimes, for walking, merely for breathing. I haven't seen that. My guess is Cooper hasn't, either.

Cooper would have had a point, had her anger subsided sufficiently to think this thing through. Bringing a matter to a grand jury in such a way that a "no bill" was not unexpected is highly irregular as Cenk Uygur summarizes below. Given that it's barely an exaggeration that a prosecutor "can indict a ham sandwich," on Monday night Five Thirty Eight's Ben Casselman explained

Cases involving police shootings, however, appear to be an exception. As my colleague Reuben Fischer-Baum has written, we don’t have good data on officer-involved killings. But newspaperaccounts suggest, grand juries frequently decline to indict law-enforcement officials. A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. Separate research by Bowling Green State University criminologist Philip Stinson has found that officers are rarely charged in on-duty killings, although it didn’t look at grand jury indictments specifically.

There are at least three possible explanations as to why grand juries are so much less likely to indict police officers. The first is juror bias: Perhaps jurors tend to trust police officer and believe their decisions to use violence are justified, even when the evidence says otherwise. The second is prosecutorial bias: Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously.

The third possible explanation is more benign. Ordinarily, prosecutors only bring a case if they think they can get an indictment. But in high-profile cases such as police shootings, they may feel public pressure to bring charges even if they think they have a weak case.

Prosecutorial bias may have been at work in St. Louis County, given that, as described by two Vox reporters

Instead of telling the grand jury what charges Wilson should face and letting the jurors hear from a detective or a couple of main witnesses, McCulloch chose to present them with every single piece of available evidence and hear every single witness — "every scrap of evidence," as he put it — and let them decide for themselves.... And the sheer volume of evidence they heard made it more likely that they'd be left to grapple with the type of conflicting statements that could lead them to conclude that there was not probable cause that a crime had occurred.

McCulloch, then, set aside the prosecutor's standard role as advocate for the state in favor of what may be termed a "fair and balanced" approach.

Balanced, certainly; fair, arguably. Yet, criticism of the prosecution's approach in the Wilson killing is paradoxical because of the role of the grand jury system in American jurisprudence.

Many individuals on the left such as Cooper legitimately fret about the great number of blacks in custody in the USA, especially compared to non-blacks.   A dirty little secret (and a secret it is, for you will not hear it uttered): much of the reason so many individuals, especially poor individuals, are in jail or prison is the grand jury system and its defacto presumption of guilt.

Individuals, like ham sandwiches, have little chance in the grand jury system.Nevertheless, a defendant theoretically is innocent unless proven guilty beyond a reasonable doubt.Presumably, he or she will not be found guilty by a jury of his/her peers unless there is overwhelming evidence.

Theoretically.  Presumably. The reality, however, is far different. Most defendants cannot afford a private attorney. Relying on a court-assigned attorney, public defender, or whatever it's called in a particular jurisdiction means a guilty plea because most attorneys (including quite a few of the private sort) will subtly (or otherwise) encourage their client to plead guilty. In almost every part of this country, indictment is virtually tantamount to a guilty plea.  The cost of a trial, in expense and time, is far too high for most people.  And in some parts of this country, a guilty plea to an indictable charge usually leads to prison.

If Cory Booker, Rand Paul, and other members of Congress waxing indignant over the nation's penal system want to end what they see as prolific incarceration of young black men, they will turn their attention to reforming fundamentally the grand jury system.  The manner in which it was applied- whether appropriate or otherwise- toward Officer Wilson bears a greater similarity to justice than the way it typically is applied.  If it were done this way everywhere, far fewer innocent people would be found guilty and even fewer incarcerated.  Some of  those people would be black. That should please us, and certainly would please Britney Cooper.

                                             HAPPY THANKSGIVING

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