An inconvenient truth

[Bells]

So Wilson didn't have a lawyer to cross-examine the evidence the prosecutor put forth, and you're saying this works in *favour* of Wilson. Do you read what you write before posting it?

I think the question that needs to be asked here is whether you read and comprehend before you post?

The prosecutor was Wilson's lawyer in that hearing. Hence the issue.

He did not go in there to try to indict Wilson, which is what he was meant to do. What he did instead was make sure Wilson was not indicted.

Do you understand now?

So you're saying that Wilson contradicted himself when being questioned, but that we was at no risk of incriminating himself.

Firstly, that does not even make sense.

Secondly, if you are saying what I think you are saying, Wilson contradicted himself by changing his story. The prosecutor failed to pick up on it and ignored it. The prosecutor then literally protected Wilson from the jurors who did try to ask him those questions and who did query the evidence and the contradictions in the case. The prosecutor also instructed the jury to ignore and disregard the law. Not to mention the fact that the prosecutor did not ask the jury to indict, as it was meant to do.

So being questioned by 4 hours by a prosecutor, and being unable to cross-examine the witness and evidence the prosecution calls forth, works in favour of the defendant? As I mentioned previously, you're exhibiting that typical liberal dishonesty where you regard your slanted worldview as axiomatic, and then distort and reinterpret all facts to fit said worldview. Personally, I don't really care when left-wingers lie to others. It doesn't affect me personally, because I have a well honed bullshit detector. However, it is tragic when left-wingers engage in self-deception, because at the end of the day, they only hurt themselves. And when they are suffering because they behave according to their superstition rather than fact, they are so brainwashed that they won't lay the blame at the feet of the liberal ringleaders who misled them.

The inherent violence and hate mongering demonstrated by left-wingers in this thread is disturbing, though. It appears that they would have just dispensed with the whole judicial system and thrown Wilson to the mob to torn apart, in spite of the fact that an impartial jury of 12 citizens couldn't even find *probable cause* to indict him. They have remained notably silent about the violent response to the failure to indict. Where is the condemnation of the looting and violence that left-wingers are perpetrating against their own neighbours? Will left-wingers hold their liberal tabloid media accountable for hate-mongering and encouraging racial violence by perpetrating factual inaccuracies about the shooting? Will they advise minorities *not* to attack armed police-men? I won't hold my breath.

He was questioned in a way that was gentle and allowed him to give his version of events, even changing his story to what he had initially reported. At no time did they actually question him about his testimony. They asked him leading questions to ensure that he gave the jury the version that would not see him indicted. Or did you miss that in everything that was posted above? Which brings me back to my first question in this post to you. Do you read and comprehend before you post? They didn't find probably cause because the prosecutor made sure there was none there for them to find and then instructed them to ignore any law and precedent that would have resulted in probable cause. For example, Wilson advised he was hit on one side of the face, yet the bruises are on the other side of his face? Then of course comes the destruction of evidence, tampering with evidence, the fact that he was allowed to drive off in the car where the initial struggle occurred before the investigation even happened and he was questioned.. The list goes on and on.

And again with the left wingers stereotypes. What violence has there been in this thread? Or do you just lie for the sake of it? Do you carry on like this to make yourself feel better about yourself? I don't know if you are being deliberately obtuse or whether you are somewhat dim at this point.

 

[Tiassa]

Part the First

Here's what a former federal judge and law professor had to say about the fairness of the Ferguson grand jury.

That is a political article that deliberately picks the weakest criticisms.

And the article Cassell refers to also includes the argument from Dan Abrams that prosecutors use grand juries like this for political cover.

Furthermore, Cassell's response to the Crump snippet is willful misdirection:

“When you think about it, if this prosecutor is saying we’re just going to be fair, we’re not going to recommend any charges, that’s different from anything he’s done in his past 28 years with grand juries,” attorney Benjamin Crump argued. It turns out that at least part of this claim is untrue: McCulloch presented to the grand jury the full range of charges, from first degree murder to involuntary manslaughter. The only difference from normal process was, apparently, that the prosecutor did not make any particular recommendation — leaving the issue up to the grand jurors.​

Crump noted that this was different from what McCulloch usually does, which supports the proposition in the NYT chart that this grand jury investigation deviated from a normal grand jury proceeding in Missouri. Cassell then picks an obscure point and tries to undo Crump's entire argument by it. Still, though, Cassell is trying to deceive the reader.

Consider the implications: Normally, a prosecutor presents to a grand jury to achieve an indictment on a specific charge. In this case, the prosecutor asked a grand jury—not composed of other attorneys, at that—to select from a range of charges that included what appears to be an inapplicable indictment; even I wouldn't indict on Murder One, regardless of whether you believe I could give a cop a fair shot. If McCulloch had wanted Murder One↱, he would have presented a very specific, very refined case asserting how Wilson's actions met the standard. Murder One in Missouri does not include Murder Under Color of Law.

Instead, he offered legal laypeople a range of options and apparently expected them to pick which one the officer could be convicted by. Author Mark Sumner considered questions that the media did not ask during McCulloch's press conference announcing the lack of an indictment:

Question: How many charges was the jury asked to consider, and how many would have needed to vote against any charge to keep it from becoming a "true bill" of indictment?

Answer: Infinite, and four

McCulloch gave the jury no instruction on what charges they should consider. Many sources have said that the jury could have considered first degree murder, second degree murder or various levels of manslaughter. True enough. They might have also considered illegal discharge of a firearm. Or assault. Or more or less anything.

On any charge considered, it would have taken nine votes to bring an indictment. We've been given the racial breakdown of the jury, which certainly suggests one answer to "how did they come to this conclusion," but it's what we'll never be told that's the real clue. With nine white jurors, it's easy to imagine that Wilson might have been protected by a handful of jurors who held onto a racist view of events. However, because of the way things were presented to the jury, confusion on any particular vote may have been generated by people pulling for a greater charge. We can't know, because the exact votes on any charge will never be released. And it's clear that, despite McCulloch's smirking protests about being "fair" this process was anything but normal.

Giving the grand jury no instruction is equivalent to throwing them into the deep end of the pool with no swimming lessons. They had to work it out for themselves. It's not unusual for the prosecutor to not suggest a specific charge, but it's almost unprecedented for the prosecutor to dump all the evidence on the jury and leave them to figure it out for themselves. Almost, unprecedented, but not quite.​

Cassell's rebuttal does not make the case.

Furthermore, Cassell suggests, "The only difference from normal process was ...." And, actually, that is a very important difference; again, the NYT chart holds up. And including an inapplicable statute in the range? That only invites more questions about what the prosecutor was up to.

And then Cassell pretends that both he and the reader are stupid:

But it is hard to understand how this had any ultimate bearing on the outcome.​

That statement is a shovelful of bovine excrement. In a normal grand jury proceeding, the prosecutor argues toward a specific indictment. Leaving a range of options to juristic laypeople can have a large effect on the outcome, and what if they pick the indictment by which the officer cannot be convicted, or would see a conviction thrown out? And, again, why was that option even in the range?

Of course, if McCulloch's recommendation was against filing charges, then he would never have gone to the grand jury in a normal case.​

We might recall that Cassell linked out to an article↱ that included Dan Abrams talking about prosecutors using grand juries for political cover. And political cover is exactly what people presumed from the outset.

Albert Samaha↱ reported on the argument that McCulloch never wanted an indictment to begin with:

And St. Louis County Prosecuting Attorney Bob McCulloch did not want an indictment. He also didn’t want a non-indictment. Instead, as he explained it to the 12 members of the grand jury, this proceeding was about investigating the case and letting the jurors decide.

“Everything that’s been collected, every statement that has ever been made, it will all be here for you,” McCulloch said on the first day, Aug. 20. “You need to keep that open mind.”

And so, over the next three months, prosecutors did not present a case or shape a narrative. Rather, they gave jurors a jumble of raw evidence: hours of recordings, documents, photographs, and interviews. And prosecutors aggressively questioned some witnesses who came before the jury on inconsistencies in the statements they’d made to authorities. Sometimes they even called their witnesses liars.

Consider Witness 42 (most names were redacted from the transcripts). On day 16, the witness told a story that made it seem that there was probable cause to indict Wilson for killing unarmed teenager Michael Brown. The witness testified that Brown ran away from Wilson as Wilson fired, and that when a bullet struck Brown, Brown put his hands up, turned around, and began walking toward Wilson.

“I didn’t deem it to be a hostile situation to where the officer needed to have his gun raised,” said the witness. “Mike was coming like, ‘stop shooting.’ And he’s shooting him and kept shooting him. I’m like, he don’t pose no threat.”

“He was ready to give himself up,” the witness later added.

In a routine grand jury proceeding, this testimony would have been deliberately deployed to get Wilson indicted. But this was not a routine grand jury.

That much became clear when Assistant Prosecuting Attorney Kathi Alizadeh torpedoed Witness 42’s credibility: “The first time you talked to the FBI, which was a week after this happened, you told them a story that had a bunch of lies, isn’t that right?”

Prosecutors have full discretion in grand juries. Typically in criminal cases, they pick which evidence to present and which evidence to withhold, which witnesses to question and which police statements to show. Usually this means revealing only “a sliver of evidence,” said Doug Nadjari, a former prosecutor in the Kings County District Attorney’s Office in New York. Defense attorneys cannot present evidence. So prosecutors can guide a grand jury toward the result they want.

So it’s not just that the outcome of this grand jury — a non-indictment — is “incredibly rare,” as FiveThirtyEight put it. What’s at least as rare is that the prosecutor relinquished his power to decide and handed it to the grand jury. “You see it sometimes in political or civil situations,” said Susan Roach, a former prosecutor in the St. Louis County Prosecuting Attorney’s Office. “It’s not used too often in criminal proceedings. Nothing that I’ve handled.”​

End Part I​

 

[Tiassa]

Part the Second

Ben Casselman's article for FiveThirtyEight, referenced in the excerpt above, notes:

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

Wilson’s case was heard in state court, not federal, so the numbers aren’t directly comparable. Unlike in federal court, most states, including Missouri, allow prosecutors to bring charges via a preliminary hearing in front of a judge instead of through a grand jury indictment. That means many routine cases never go before a grand jury. Still, legal experts agree that, at any level, it is extremely rare for prosecutors to fail to win an indictment.

“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”​

And while Mr. Cassell, in his WaPo article, states definitively that "if McCulloch's recommendation was against filing charges, then he would never have gone to the grand jury in a normal case". Mr. Casselman spoke with a law professor from Missouri who disagrees:

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.

“The prosecutor in this case didn’t really have a choice about whether he would bring this to a grand jury,” Ben Trachtenberg, a University of Missouri law professor, said of the Brown case. “It’s almost impossible to imagine a prosecutor saying the evidence is so scanty that I’m not even going to bring this before a grand jury.”​

It is rare enough that a prosecutor will call witnesses specifically to discredit themselves before a grand jury; this is a strong indicator that McCulloch did not want the officer charged. But, you know, Paul Cassell says otherwise, and he is a former judge and law professor, so he must necessarily be right? That's what we call an appeal to authority, and it is considered an argumentative fallacy. Compared to what other law professors and legal experts are saying, Mr. Cassell is out on a limb; he is arguing against the broader consensus.

Mr. Cassell continues:

And if his recommendation was filing charges, then in the normal course a grand jury (or judge) would have had to review the evidence and would have been thrown out the indictment at the point.​

Okay, you got me on this one. What the hell does that sentence even mean? Indeed, it doesn't seem to acutally be a sentence.

Remarkably some critics have said that the grand jury took too long to reach its decision.​

The entire grand jury process took considerably longer than most, and while Cassell chooses to elevate Al Sharpton as some sort of legal expert to rebut, the Reverend is correct in his own context. We can certainly nitpick syntax, but the point remains that had McCulloch followed standard procedure, the grand jury wouldn't have had needed to take so long to review the evidence.

Note how Cassell isolates issues in his rebuttal, though:

It’s hard to take this objection seriously. Obviously to review the number of witnesses that the grand jury did required considerable time. One can only imagine what critics might have said if the grand jury had made a decision more rapidly — without hearing all the evidence.​

Are you familiar with the ideas of due process and equal protection? This is why Cassell isolates the issue. His point holds in its political context; a grand jury needs to review all the evidence put before them, but that only begs the question.

In terms of due process and equal protection, who else gets this kind of treatment before a grand jury? While analysts are safeguarding themselves by remaining open to the proposition that what McCulloch did is not unique, if it was a common procedure people wouldn't still be scraping around for a precedent; we would already see a list of the plethora of similar cases.

Perhaps the most remarkably criticism that has been made about the process is that the grand jury got too much evidence.​

This is only a remarkable criticism if this grand jury investigation was like most others. Again, Cassell is trying to isolate the issue in order to avoid the obvious questions about due process and equal protection: Who else gets this treatment before a grand jury?

Some critics have criticized the grand jury because it operated outside of public view. For example, Susan McGraugh, a supervisor of the Criminal Defense Clinic at the Saint Louis University School of Law, complained before the announcement that “it’s really a secret process . . . . At a time when there’s a lot of discussion going on about whether or not police officers and the way they operate are transparent, it really lends itself to these allegations of conspiracy between the police department and the prosecutor.” But grand jury secrecy is a well-established part of the investigative process — and required by Missouri law — for obvious reasons. Operating in secret, a grand jury can collect evidence and test the memory of witnesses against that evidence.​

Here Cassell is openly misrepresenting McGraugh in order to knock down a straw man. As with the Crump snippet, he is responding to a press report, not a detailed legal analysis. Even still, he alters the context. From the article he links to↱:

“I think that following a different procedure than would normally be followed has created a lot of consternation, a lot of bad feelings,” Susan McGraugh, a supervisor of the Criminal Defense Clinic at the Saint Louis University School of Law, told NBC News on Sunday.

McCulloch, the prosecuting attorney, could have made the decision to charge Wilson himself, McGraugh said. Or he could have recused himself from the case, as some in Missouri called for, in which case a special prosecutor would have been appointed.

But McCulloch decided to present the case to a grand jury so that a decision could be reached in a “fair, full and impartial manner.” And McCulloch has not publicly recommended a specific charge against Wilson.

In another rare move, McCulloch ordered all grand jury proceedings to be recorded and said he would request for them to be made public if Wilson was not indicted, but the St. Louis County director of judicial administration said Sunday that a judge would need to review the evidence that was presented before deciding what portions would be released.

“It's really a secret process,” McGraugh said, adding that “at a time when there's a lot of discussion going on about whether or not police officers and the way they operate are transparent, it really lends itself to these allegations of conspiracy between the police department and the prosecutor.”

If the grand jury decides on an indictment less than first-degree murder, “portions of the community” will not accept that the grand jury procedure was fair because they will feel as though they were “left out of the process,” McGraugh said, and the unique and prolonged grand jury suggests "that Officer Wilson is getting special treatment under the law.”​

McGraugh's words about the secrecy of the process discusses a contrast of diverse issues; Cassell, however, tries to depict the law professor as naïvely arguing that grand jury proceedings are supposed to be public—this is his straw man:

But grand jury secrecy is a well-established part of the investigative process — and required by Missouri law — for obvious reasons. Operating in secret, a grand jury can collect evidence and test the memory of witnesses against that evidence. If the grand jury operated openly, then it would be easy for witnesses to tailor their testimony to what other witnesses had said, making it difficult to determine the truth. And to extent that the objection is that police and prosecutors might have “conspired” together, if anything the grand jury would have served as a check on that process.​

Given the fact that McCulloch called unreliable witnesses specifically to discredit the allegations against the officer, Cassell's argtument that the grand jury would serve as a check against conspiracy is profanely ridiculous.

End Part II​

 

[Tiassa]

Part the Third

Other critics have argued that the grand jury was exposed to pressure, because when it went home each night after hearing evidence, it was aware of community unrest and other extraneous factors that might have lead it to not indict. But, if anything, the easy course for the grand jurors to have taken would have been to return at least some charge against Officer Wilson, such as a split-the-difference charge like involuntary manslaughter.​

This argument would have more credibility if this had been a normal grand jury proceeding. Well, sort of. After all, if this is a normal grand jury proceeding, the jurors would not be going home each night after twenty-five days of presentation spread out over the course of months. They would have heard the evidence in a day or two, likely under sequestration for such a short period, and returned with their decision.

A grand jury verdict in the face of considerable political pressure to charge is a demonstration of a commitment to the rule of law — something to be celebrated rather than condemned.​

This is a political argument that ignores the strangeness of these proceedings.

6. The Grand Jury Did Something That Grand Juries Ordinarily Don’t Do.​

We can tell Ben Caselman rattled the right cage for two reasons: First, Mr. Cassell links out to a different article by a different author at a different website from the one he wrongly attributed.

Second, Cassell's rebuttal is nearly incoherent:

Ben Caselman at The Huffington Post has an objection styled as a factoid that “it’s incredibly rare for a grand jury to do what Ferguson’s just did.” He reports that in 2010, federal prosecutors sought charges in 162,000 federal cases, and yet grand juries declined to return an indictment in only 11 of them. This point confuses apples with oranges. It take as the apples a pool of cases where federal prosecutors had already screened the evidence for probable cause (or, more likely, reasonable likelihood of success at trial — see the next point below). Hopefully, if federal prosecutors are doing their jobs well, the number of these cases in which probable cause does not exist should be something close to 0% — as Caselman reports is the case. But Caselman then compares these apples to the orange of this case — a situation where a grand jury is investigating with no assurance that any criminal conduct is present. Obviously an investigation into a possible crime is never a sure thing — particularly in the area of police shootings, where the law gives officers some leeway for making split second decisions. The difference in the outcome with the Michael Brown investigative grand jury from a routine federal prosecution is hardly surprising.​

Cassell deliberately misrepresents Caselman, who does in fact attempt to account for the differences between state and federal numbers. And, furthermore, Cassell is still the outlier. In order to accept Cassell's apples and oranges argument, we must accept that the manner in which McCulloch conducted this grand jury is routine; we already know it wasn't.

Some critics have alleged that the grand jury misunderstood (or was misinformed) about the “probable cause” standard for returning an indictment. But this grand jury was one that had already evaluated many criminal cases and thus would have had significant experience in applying the probable cause standard.​

It would be incumbent upon Mr. Cassell, given everything else we know about this case, to back this part of his argument with certain evidence. How many counts as "many"? And how many of those "many" were conducted like this?

Moreover, the dubiousness about whether the relatively low standard of probable cause was met in this case casts serious doubt on the viability of prosecuting Darren Wilson at trial.​

Again, this argument would have at least some merit if this grand jury was conducted as grand juries usually are, something we already know to not be the case. As it is, the failure of a deviant grand jury proceeding to achieve its statistically-prevalent outcome reflects only on the deviant grand jury proceeding. It is inappropriate to misrepresent the situation as Mr. Cassell has.

Indeed, if probable cause is debatable, ordinarily prosecutors do not file charges — even if they believe they can meet that minimal standard. For example, the National District Attorney’s Association recommends, as part of its standards for responsible prosecution, that “[a] prosecutor should file charges that he or she believes adequately encompass the accused’s criminal activity and which he or she reasonably believes can be substantiated by admissible evidence at trial.” If the grand jury’s decision about probable cause was even a close call, charges would not ordinarily be filed — should not be filed.​

It is interesting that Cassell should make this argument, since it is wholly irrelevant to the grand jury. As it is, Team McCulloch put a lot of effort into calling witnesses in order to discredit them before the grand jury and thereby discourage any indictment.

The ad hominem argument that Robert McCulloch should have recused himself has resurfaced in the wake of the grand jury’s decision. For example, Raul Reyes wrote on CNN’s website that “[f]or the sake of impartiality, McCulloch should have let a special prosecutor take over the case,” explaining that McCulloch’s father was a police officer who, long ago, was shot in a shootout. For this criticism to have any bite, it would be necessary to take the next step and show how an “unbiased” prosecutor would have done something differently than McCulloch — a fact that seems dubious given the extensive evidence that was presented to the grand jury. In any event, the recuse argument lacks merit, as I explained several months ago.​

The argument for recusal arises from the fact that in twenty-three years as a prosecutor he has never prosecuted a police officer for shooting a suspect. Furthermore, he has ties to the police and other first responders through a charity intended to support those people and their families during the Ferguson unrest.

To the one, at this point we need not wonder why Mr. Cassell omits these considerations. To the other, his argument is circular: "For this criticism to have any bite, it would be necessary to take the next step and show how an 'unbiased' prosecutor would have done something differently than McCulloch — a fact that seems dubious given the extensive evidence that was presented to the grand jury."

The counterpoint is easily predictable: An 'unbiased' prosecutor would have conducted a normal grand jury proceeding.

9. The Grand Jury Evidence Shouldn’t Be Released.​

We might notice that Mr. Cassell did not offer an example of what this argument actually is. But rebutting an actual point isn't Cassell's intention here; setting up his astounding conclusion is:

Yesterday I wondered whether the facts before the grand jury really mattered to some of the more vocal supporters of Michael Brown. Today I think it is becoming increasing clear that they don’t. For too many people, the issue of whether to indict Officer Darren Wilson was never about the process employed or the evidence collected. But fortunately, the prosecutors and the grand jury took a different tack.​

This statement seems insane in light of the fact that process is at the heart of objections to this grand jury. The way it reads, with a simple fact appended, is: For too many people, the issue of whether to indict Officer Darren Wilson was never about the process employed or the evidence collected. But fortunately, the prosecutors and the grand jury took a different tack by offering extraordinary process and protection to the person the grand jury was supposed to be investigating.

The thing about your presentation of Cassell as an appeal to authority is that this particular authority is a severe statistical outlier. Analogously, the anti-abortion movement for years repeated a line by Dr. John Willke about rape victims not being able to get pregnant. That line destroyed at least two election bids in 2012. Activists liked to repeat it because, you know, Dr. Willke is a medical doctor, so he must be right, right? Except statistically speaking, Willke was an outlier. Of course, in that issue, the magnitude of his deviation can be observed in the fact that rape survivors do get pregnant, and that outcome is not what we would call rare.

Similarly, yeah, I get it, Cassell is a law professor and former judge, but when we actually look at the detail of his argument, we find it not only lacking but actually and specifically dishonest. His article is a political argument, not an actual legal analysis.

End Part III​

 

[Tiassa]

Part the Fourth

One point worth considering is that it would, in fact, be helpful if more grand jury investigations were released to the public after the fact. While Cassell is busy ignoring the massive deviation that was the Ferguson grand jury, other attorneys are trying to take more practical views. Defense attorney Joel Cohen and law professor Bennett L. Gershman, writing for Huffington Post↱ reflect:

McCulloch departed from the classic use of the grand jury employed by virtually every prosecutor in almost every jurisdiction: Present a one-sided narrative that suffices to gain an indictment that the prosecutor believes is warranted by the evidence. After all, a grand jury isn't a trial jury. It's only a preliminary proceeding for the purpose of articulating a formal charge to require someone to stand trial on a felony charge. Given the prosecutor's expertise and knowledge of the evidence, it is the prosecutor, not a bunch of lay persons, who is uniquely positioned to determine whether a case should go forward. And make no mistake, that's the view of every prosecutor -- and was indeed the authors' view when they were prosecutors.

Examining the considerable amount of evidence heard and evaluated by the Ferguson grand jury, there is certainly much room for debate on whether Prosecuting Attorney McCulloch made a "fair and balanced" presentation of all of the facts to the grand jury. But as noted, it is not a prosecutor's duty to make a "balanced" presentation to a grand jury. McCulloch himself decided that he wanted to tell the Ferguson community and, indeed, the nation -- he certainly knew the nation was watching -- that he was planning to ensure that the grand jury would hear "everything." So, even though a grand jury -- empaneled for the sole purpose of deciding whether to charge someone with a crime -- traditionally only hears the prosecution's side of a case, McCulloch intended to, and did, go much farther than the law actually requires him to do. But why did he do it? That's the real question.​

They review a bit of history, that McCulloch did in fact present a traditional sort of grand jury argument insofar as it looked more like a twelfth-century guard against a monarchy. But this is not then and there; this is here and now, and in the U.S., this was not by any definition a normal grand jury proceeding.

By convening a grand jury that would consider all of the evidence, these critics argue, McCulloch allowed Wilson to present his narrative at the outset, in the hope that the grand jury would decline to charge him with any crime, thus closing the book on this tragic event. And McCulloch's best recourse to make it appear that he was trying to let the chips fall wherever they may -- ostensibly to be seen as making a "fair and balanced" presentation -- was to let a grand jury hear the whole shooting match.

The central irony in this case is that the familiar abuses in the grand jury process typically occur when prosecutors refuse to present all of the evidence and, indeed, hide evidence that might have led a grand jury to refuse to indict - to vote a "no true bill." What is particularly odd about the Ferguson Grand Jury presentation is the complaint that by his decision to present all of the evidence, McCulloch actually dis-served the prosecution. Why did McCulloch take these steps? We do not know, and we are likely never to know.

But here's the rub. One of the most respected legal commentators, Jeffrey Toobin, of The New Yorker and CNN, actually argues that, in giving Wilson "special treatment" and letting a grand jury hear both sides of the case -- indeed, departing from protocol -- McCulloch damaged the public's perception of the grand jury process. Toobin argues that because the customary practice is for prosecutors to basically tell the grand jury only one side of the story -- which has been likened to a procedure that would virtually enable a prosecutor to "indict a ham sandwich" -- McCulloch did the System an injustice by, according to Toobin, in effect acting as Wilson's counsel. Toobin believes that having treated Wilson this way, McCulloch may have allowed him to escape the charge. If Wilson were to escape prosecution, Toobin argues, it should have been because the grand jury -- hearing evidence the way every grand jury hears evidence, i.e, with the prosecution presenting only its side -- elected not to charge Wilson with a crime. In other words, of all the cases McCulloch might have treated differently, it should not have been this one.​

In the end, it might be that this particular appearance of injustice will provide an opportunity to actually improve our justice system, the point remains that the State of Missouri, through Bob McCulloch and his team, deliberately tanked this grand jury proceeding.

In essence the Wilson/Brown confrontation raises the fundamental question of whether the grand jury system is flawed and needs to be corrected, or abolished. Should we have a system that allows defendants to be indicted by a grand jury that hears evidence while sitting in the "ham sandwich" mode? And lest we forget, an indictment -- any indictment -- inflicts a heavy blow to a person's life, liberty, and reputation.

Assuming the grand jury still serves a useful function, isn't the answer instead to improve the grand jury system by providing a proper check and balance against wrongful indictments? Would it not be better to allow grand juries to hear all evidence that might exonerate the defendant, or theories of the defense, perhaps which the defense asks be presented? The public would be surprised to know how infrequently a prosecutor presents exculpatory evidence or evidence that is inconsistent with the prosecutor's theory of the case. Can the answer really be -- as possibly intimated by Toobin -- to simply let the case go trial where the whole truth will emerge? It may very well be, as Toobin suggests, that a "fair and balanced" grand jury presentation in every case would be too costly in terms of time and expense. Indeed, it would seem to be duplicative of the trial process.

There is no question that there are many troubling concerns about the Ferguson presentation. Should McCulloch have disqualified himself from the case? Did the presentation go on for far too long? Did McCulloch at his controversial press conference treat Wilson as his client rather than a target of the grand jury's investigation? And perhaps most troubling of all, it appeared from the transcript of his testimony that, in questioning him, McCulloch treated Wilson with kid gloves.​

I would ask you to imagine a version of American society in which every suspect gets the opportunities that this officer was given by the grand jury investigation. And it can only be an imaginative exercise because it just doesn't happen. Because the target of the investigation was a police officer, he was given extraordinary process and protection under the law by prosecutors. In what other circumstance does a lawyer call witnesses intending to discredit his own case? And if a grand jury should be a simple, broad investigation and not a prosecutor presenting a specific case, then it should be that way for everyone.

In order for Mr. Cassell's analysis to hold up, we must presuppose contrary to fact; namely, we must presuppose that the process and protection this police officer received is the same as everyone else. Observably, this is not true.

One can certainly argue that what privileges and protections this officer received before the grand jury should be available to every target of such investigation. But it is undeniable that this police officer received extraordinary process and protection under the law. It is this difference that has so many people so angry about the decision to not indict, and nothing Mr. Cassell says in his arrogant, dishonest political argument changes those facts.

And given that the DA in question corrected her mistake, how is this relevant to the grand jury’s ultimate conclusion?

Can you demonstrate, from the transcript, that Ms. Alizadeh informed the jury what the mistake was and what the proper law was? So far, nobody has. You could be the first.

Especially since Wilson’s use of deadly force was consistent with current law.

That is sort of putting the cart before the horse. If Ms. Alizadeh believed the officer's conduct was consistent with current law, she should not have been participating in this grand jury investigation. Which, of course, brings us back to Cassell's point about whether McCulloch wanted to charge the officer at all. Your argument contradicts itself.

End Part IV​

 

[Tiassa]

Part the Fifth

Notes:

Cassell, Paul G. "The Michael Brown grand jury process was fair". The Washington Post. 25 November 2014. WashingtonPost.com. 3 December 2014. http://www.washingtonpost.com/news/...he-michael-brown-grand-jury-process-was-fair/

"Homicide Statutes". University of Missouri at Kansas City. (n.d.) Law.UKMC.edu. 3 December 2014. http://www1.law.umkc.edu/suni/CrimLaw/calendar/homicide_statutes.htm

Sumner, Mark. "The questions no one asked St. Louis prosecutor Bob McCulloch". Daily Kos. 25 November 2014. DailyKos.com. 3 December 2014. http://www.dailykos.com/story/2014/...o-one-asked-St-Louis-prosecutor-Bob-McCulloch

Hill, James and Dean Schabner. "Ferguson Grand Jury 'Unfair,' Michael Brown Family Lawyer Says". ABC News. 23 November 2014. ABCNews.Go.com. 3 December 2014. https://abcnews.go.com/US/ferguson-grand-jury-unfair-michael-brown-family-lawyer/story?id=27117993

Samaha, Albert. "The Purpose Of The Ferguson Grand Jury Was Not To Get An Indictment". BuzzFeed. 25 November 2014. BuzzFeed.com. 3 December 2014. http://www.buzzfeed.com/albertsamaha/ferguson-grand-jury-purpose-not-indictment

Caselman, Ben. "It’s Incredibly Rare For A Grand Jury To Do What Ferguson’s Just Did". FiveThirtyEight. 24 November 2014. FiveThirtyEight.com. 3 December 2014. http://fivethirtyeight.com/datalab/ferguson-michael-brown-indictment-darren-wilson/

Fieldstadt, Elisha and Ron Allen. "Was Grand Jury the Best Option in Ferguson Case of Michael Brown?" NBC News. 24 November 2014. NBCNews.com. 3 December 2014. http://www.nbcnews.com/storyline/mi...st-option-ferguson-case-michael-brown-n254531

Cohen, Joel and Bennett L. Gershman. "Reflecting on the Ferguson Grand Jury". The Huffington Post. 2 December 2014. HuffingtonPost.com. 3 December 2014. http://www.huffingtonpost.com/joel-cohen/reflecting-on-the-ferguso_b_6249714.html

Fin​

 

[tali89]

I think the question that needs to be asked here is whether you read and comprehend before you post?

The prosecutor was Wilson's lawyer in that hearing. Hence the issue.

What retainer fee did Wilson pay the prosecutor? What was the going rate per hour?

Firstly, that does not even make sense.

Of course it doesn't make sense. It came from you mouth, after all. When I pointed out that Wilson being questioned for four hours put him at risk of incriminating himself, you asserted that he was at no risk of incriminating himself. You then went on to claim that he had incriminated himself when questioned by the prosecutor. You can't even keep your story straight at this point.

Secondly, if you are saying what I think you are saying, Wilson contradicted himself by changing his story. The prosecutor failed to pick up on it and ignored it. The prosecutor then literally protected Wilson from the jurors who did try to ask him those questions and who did query the evidence and the contradictions in the case. The prosecutor also instructed the jury to ignore and disregard the law. Not to mention the fact that the prosecutor did not ask the jury to indict, as it was meant to do.

He was questioned in a way that was gentle and allowed him to give his version of events, even changing his story to what he had initially reported. At no time did they actually question him about his testimony. They asked him leading questions to ensure that he gave the jury the version that would not see him indicted. Or did you miss that in everything that was posted above? Which brings me back to my first question in this post to you.

Give that indictments are conducted in secret, I have to ask the obvious here: How do you know the above? If you weren't present at the indictment, then it is intellectually dishonest to present the above as facts, when they are actually conjecture.

 

[Captain Kremmen]

Figures from 2011

http://www.businessinsider.com/why-do-us-police-kill-so-many-people-2014-8?IR=T

Police are killing too many people, both black and white.
If you are 15 to 30, male, and black, you are disproportionately likely to be killed,
but whether you are black or white, if you are in the process of arrest,
your life is in jeopardy.

See http://www.vox.com/2014/8/21/605104...led-police-statistics-homicide-official-black

 

[iceaura]

Of course they’re supposed to be hearing Wilson’s story. Not only does Wilson have a right tell his story in a grand jury proceeding, he is also an eye witness to the incident,

No, he doesn't. That is not theoretical or philosophical, but black and white law: there's an unchallenged and uncontroversial Supreme Court decision on that specific matter.

( iirc a Mafia guy wanted the opportunity to sway a grand jury and avoid trial, and Scalia wrote the opinion: the obvious one, since a grand jury hearing is for the State to decide whether to prosecute, and since they are secret and their proceedings without effect otherwise there is no legitimate reason for the defendant to want to appear at them).

A defendant is not an "eye witness" to their own crime, by the way. Eye witness testimony is not important at grand jury hearings anyway - most feature little, or none at all. Testimony from eye witnesses can be compelled at trial, where it is put under oath and carries risk of perjury as well as self-incrimination. Grand jury hearings take less than day, normally - very little time for witnesses to testify.

Here's what a former federal judge and law professor had to say about the fairness of the Ferguson grand jury.

He didn't read the testimony, so he doesn't know how it worked - how the prosecutor manipulated the jury, rigged the testimony, etc. He is analyzing from a presumption of good faith, of a prosecutor attempting to obtain an indictment as would be his universal experience, of witnesses treated equitably, of balanced and honest presentation of the case to a balanced and honest jury. Given those, this odd and unusual procedure replacing a normal grand jury hearing might very well have worked fairly - and if we could assume such things, we could replace all our jury trials with hearings of that kind.

So Wilson didn't have a lawyer to cross-examine the evidence the prosecutor put forth, and you're saying this works in *favour* of Wilson.

Wilson agreed to the situation, and it worked in favor of Wilson, which is clear evidence of special arrangements made in his favor.

So you're saying that Wilson contradicted himself when being questioned, but that we was at no risk of incriminating himself.

Yes. That seems to have been among the reasons the prosecution wanted to avoid a trial - in a trial Wilson would have been under oath, and failure to deal normally with obvious contradictions in his testimony would have had consequences for the prosecuting attorney.

The inherent violence and hate mongering demonstrated by left-wingers in this thread is disturbing, though. It appears that they would have just dispensed with the whole judicial system

The normal workings of the judicial system is what everyone here you call a "leftwinger" has been arguing for, not against.

What we just saw is a bunch of white people in political control of a deeply racist society, including a dysfunctional police force under scrutiny for its record of racial abuse and a historically biased prosecutor under public observation while facing a trial he does not want, dispense with the normal judicial system and set up a show trial rigged in their favor. If your complaint is about dispensing with the judicial system, start there.

Where is the condemnation of the looting and violence that left-wingers are perpetrating against their own neighbours?

This is worth highlighting - I know that the wingnut crowd has long ago destroyed any possible meaning for their use of the term "leftwing", along with much English vocabulary formerly used to reason and discuss important issues, but the recent conflating of black people and "leftwingers" is striking. Are these people truly as lost in their own fantasy world as that implies?

 

[Tiassa]

This is worth highlighting - I know that the wingnut crowd has long ago destroyed any possible meaning for their use of the term "leftwing", along with much English vocabulary formerly used to reason and discuss important issues, but the recent conflating of black people and "leftwingers" is striking. Are these people truly as lost in their own fantasy world as that implies?

Either lost or behaving with deliberate malice. One of my personal sayings is that sometimes an issue comes down to being either sinister or stupid, and in truth there isn't much difference insofar as being sinister requires either a lack of knowledge or failure to functionally apply knowledge in its appropriate context—i.e., stupidity.

What bothers me more, though, is the utterly predictable behavior. Like how Bells↑ highlighted the Supreme Court outlook on whether or not a suspect should testify at a grand jury investigation targeting him. Capracus comes in and posts a paragraph↑ that seems to ignore everything people have been saying and documenting in this thread; you point out an error↑ in his argument; he then turns around and makes a completely inaccurate statement↑ without bothering to address what is on the record, in this case what has already been noted about the Supreme Court outlook on grand juries. No evidence to support his argument, no attention to what is already on the record.

As another example, check Tali's post at #47↑, and ask yourself what, in those three paragraphs, hasn't already been covered in this discussion. To the one, if someone disagrees, fine, whatever. To the other, it does nobody any good by refusing to make the argument about why one disagrees.

In my opinion, this is a sleazy, cowardly way to argue. And it is observably a frequent byproduct of people ostensibly arguing about an issue when their motivation is personal and has less to do with the issue than the people taking part in the discussion.

Tali and Capracus are both welcome to formulate real arguments supported by the available evidence. They are welcome to put more evidence on the table. I can at least thank Capracus for pretending to try; sure he grabbed a major-media source that is highly ranked in the search engine output, but it is also pretty clear that he had no idea what was actually in the article because, let's face it, Paul Cassell's argument is a rhetorical and ethical disaster.

When we look at the difference in the arguments, there will always be the question of who agrees or disagrees, but it is also pretty clear who is formulating their outlook from the available evidence, and who is simply politicking on behalf of white supremacism.

Look at their rhetoric. They're not trying to prove an argument, but, rather, attack other people.

 

[Photizo]

"...on behalf of white supremacism."

... http://www.unz.com/freed/black-power/ ...

 

[StrangerInAStrangeLand]

Are these people truly as lost in their own fantasy world as that implies?

It's often indistinguishable from religion.

 

[Captain Kremmen]

"...on behalf of white supremacism."

... http://www.unz.com/freed/black-power/ ...

An argument that Black people are inherently stupid and violent.
Do you think that is helpful?

 

[iceaura]

Inverse Poe's Law: I actually missed the transition from Tiassa to Photizo in #51, and thought Tiassa was illustrating the malice behind the insanity of the bigot crowd with a specific example.

There is humor in this mess, however dark. So Photizo "thinks" that black rioters are leftwingers, that the Ferguson "leftwingers" are "killing, raping, - - - the usual", and that those leftwingers are in control of American society (except for the police, courts, and grand juries of Ferguson, MO, apparently). That's some remarkable "thinking", that is.

You make a good point, Tiassa, but I'm going to go with stupid, on this one.

 

[Captain Kremmen]

This is him:

:

Offended yet?

 

[Photizo]

The problem is not with whites. The problem is centered in an unruly, undisciplined, violent, and irresponsible black society. You pit that society against normal white standards of behavior/expectations concerning law enforcement (with accompanying expectations of respect and compliance) personnel and you are asking for trouble the kind of which we see on a continual basis. Much of what we see at this point is borne of frustration with having to serve and protect people who's behaviors are predominantly criminal. The message needs to go out not to police, but to black society to show respect and obedience to the police rather than rebellion and hostility. It is their behaviors that provoke the responses from LAW ENFORCEMENT. Resisting them is NOT the way to deal with them, they are charged with the task of enforcement. In the presence of an officer, you are to be respectful and polite, not antagonistic. If they were to change these violent and irresponsible ways, there is no question things will eventually calm down. The solution is not to hamstring the police in the face of an already unruly mob, but to teach the mob proper ways of living and behaving in a civilized society not the least of which includes respect and compliance when confronted by a police officer.

 

[Photizo]

"You make a good point, Tiassa, but I'm going to go with stupid, on this one."

 

[iceaura]

The problem is not with whites.

The problem is with you and your kind. You're dumb and mean.

The message needs to go out not to police,

The message needs to go out to you and your kind: decent folk have had it with you. Two hundred years of pig ignorant brutality is enough.

The solution is not to hamstring the police in the face of an already unruly mob, but to teach the mob proper ways of living and behaving in a civilized society not the least of which includes respect and compliance when confronted by a police officer.

How about we send your police back where they came from, and they can behave as they have been behaving on your street. A few bullets in the walls of your living room, a couple trips to the station in cuffs for loitering on the sidewalk in front of your own home, some no-knock raids based on allegations of drug use at your house, and we'll talk about getting more respect and compliance from you.

 

[Photizo]

Trust me when I say decent folk have had with your kind--of whatever color.

 

[Bells]

"...on behalf of white supremacism."

... http://www.unz.com/freed/black-power/ ...

Oh my..

Where do I even begin...

The irony of your position is that in your profile you appear to describe yourself as being "in Christ" and apparently you are a christian. Firstly, Jesus was not white. Secondly, protests against unjust treatment of minorities is what Jesus did and he did so avidly. In short, the "Christ" that you are "in" was a leftist liberal who bucked against the oppressive white Romans and the religious leaders he felt were warping Judaism to serve themselves.

What's worse is that with an avatar of a buffoon wearing a stereotypical Mexican band costume, you are trying to argue that black people are violent and stupid. Surely the idiocy of your current position cannot be lost on you?

The problem is not with whites. The problem is centered in an unruly, undisciplined, violent, and irresponsible black society.

When a white person kills an unarmed black person, it's the black person's fault? Does this mean when white soccer hooligans run amok, destroying property, beating anyone within sight, to the point where they are barred from visiting countries in Europe and elsewhere and their passports are revoked, this is an evidence of violence within white society? Is the problem with whites then?

What about when thousands of white people turned up at a primary school to abuse, spit on and threaten violence against a black little girl for daring to attend that school, were the white people being unruly, undisciplined, violent and irresponsible?

It's that belief, that absolute bigotry and racism that we are seeing constantly. In short, it's not them, it's people like you that is the problem.

You pit that society against normal white standards of behavior/expectations concerning law enforcement (with accompanying expectations of respect and compliance) personnel and you are asking for trouble the kind of which we see on a continual basis.

Which white standard of behaviour are you referring to? The moronic one you are displaying in this thread?

What about the white people who are killed by police officers and the police get away with it. Are you going to argue the same thing about them?

Much of what we see at this point is borne of frustration with having to serve and protect people who's behaviors are predominantly criminal. The message needs to go out not to police, but to black society to show respect and obedience to the police rather than rebellion and hostility.

Well of course it would upset you. And offend you. Because how dare black people think they could be equal to you and have the same rights as you do? Hence the protests. They are denied their fundamental and intrinsic human rights. But to people like you, it's not meant to apply to 'them', is it? Just to you? You view their rights as somehow infringing on your rights.

It is their behaviors that provoke the responses from LAW ENFORCEMENT. Resisting them is NOT the way to deal with them, they are charged with the task of enforcement.

Then perhaps they should start enforcing instead of just shooting.

That might help solve a lot of killing of black and white people by the police. It might also mean that babies sleeping in their cots won't have flashbang grenades thrown onto their chests by police officers when a simple knock on the door would have sufficed.

In the presence of an officer, you are to be respectful and polite, not antagonistic.

And if they are not respectful and polite?

Respect is earned.

If they were to change these violent and irresponsible ways, there is no question things will eventually calm down.

The same could apply to the police. If they stopped just killing unarmed people and stopped harassing people for just walking down the street, then things would improve. And I am not talking about Brown here, but about the other people they harass, stop and question for not other reason than they are walking on the street as a black person.

From the black women who are stopped and questioned on the street while walking with their white husbands because the police assume that a black woman with a white man has to be a prostitute, to harassing black people for walking with their hands in their pockets, to harassing black people who are walking to their places of employment. If police stopped acting like bullies and harassing people about their daily business, then things would improve. Then maybe they might actually deserve the respect they seem to believe they are owed.

The solution is not to hamstring the police in the face of an already unruly mob, but to teach the mob proper ways of living and behaving in a civilized society not the least of which includes respect and compliance when confronted by a police officer.

Actually the solution is to not recruit people who are racist white supremacist twats and to train police officers to respect people's human rights and to treat people like human beings, regardless of race, colour, gender, sexuality or religion.