Monthly Archives: December 2014 - Page 2

What Ferguson Doesn’t and Didn’t Mean

WHAT FERGUSON DOESN’T MEAN

by

LIONEL

Let’s be very clear about something regarding the tragedy that was Ferguson. And clarity is something desperately needed. It’s critical to note what the case does not mean.

The grand jury’s refusal or reluctance or inability to indict Officer Darren Wilson, i.e. by returning a “no true bill” on a host of charges from murder to involuntary manslaughter, doesn’t mean that another grand jury cannot be reassembled to indict because double jeopardy does not apply. (Double jeopardy attaches when a petit jury is sworn.)

It doesn’t mean that Officer Wilson wasn’t a bad cop or negligent or racist or incompetent. It doesn’t mean that Ferguson is not a hotbed of intolerance. It merely means that a grand jury did not find probable cause (PC) to indict. And as burdens of proof go, PC is notoriously simple to overcome. I contend a more contemporary definition of PC is “He probably did it.” And, yes, it’s significant to note that not a single charge was found to satisfy PC. Nothing. Especially in view of the esteemed New York jurist Sol Wachtler’s now famous quip that a good prosecutor could indict a ham sandwich.

It doesn’t mean that Bob McCulloch was an inept prosecutor or held back evidence or that the evidence was in and of itself insufficient. It doesn’t mean that Wilson will not be found civilly liable in a host of potential lawsuits and it doesn’t mean that the failure to find criminal liability in any way precludes civil liability exposure. It doesn’t mean that witnesses were necessarily lying or perjurious. They can and often change their minds, forget and experience different perceptions of the same events.

It doesn’t mean that McCulloch should have necessarily appointed or requested a special prosecutor, though in retrospect it might have been wise. It doesn’t mean that his familial relationships with police somehow disqualify him as a prosecutor. Try finding one who doesn’t have strong ties to cops. It doesn’t mean that Michael Brown asked to be killed or is a thug or a criminal. No, the lack of criminal charges, the deliver of no true bill doesn’t mean anything other than no criminal liability was found. A radiologist who scans an X-ray and announces no evidence of bone fracture doesn’t mean that a patient isn’t hurt or in pain or limping. A negative pregnancy test doesn’t mean that no one had sex or that a rape didn’t occur.

Many civilian observers have quickly realized that criminal law and real life prosecutions aren’t Law & Order. And I daresay they’re shocked. Shocked at what many of us who’ve served in the M*A*S*H units of the DA’s office and trial warrior trenches have known for years: the system exhibits many iterations from surgically precise to reckless and inept. The grand jury was theoretically designed to act as a buffer, a detached and separate tribunal to protect us from a marauding crown. And it’s fraught with problems.

Historically the grand jury is the prosecutor’s tool. And interestingly enough, now making the rounds is SCOTUS Justice Antonin Scalia’s 1992 opinion in Williams. It’s been quoted (interestingly enough) by the same folks who until recently most probably reviled him. He noted that historically “neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.” Touché, Nino. The Williams court refused to dismiss an indictment where exculpatory evidence was not introduced. Here, in a most novel approach, it seems the juridical vigilantes want an indictment delivered because too much exculpatory evidence was presented. Go figure.

The grand jury’s decision anent the tragedy that is the death of Michael Brown doesn’t mean anything other than PC as to criminal liability was not found, seen, presented or allowed to be established. That’s it in a nutshell. It’s time to take a breath and continue to demand accountability from all police departments everywhere and always. And if you’re up to the challenge, Google “Kelly Thomas,” the case of a schizophrenic homeless man who was beaten to death by two Fullerton, California, cops who were ultimately acquitted. There were no riots in protest.

Now imagine the reaction to an acquittal in Wilson’s trial had it been permitted to go forward.

 

The Militarization of the Police Is the Problem

Prolegomenon. There is an old joke about a man looking for a watch on Broadway when it was lost in the Bowery; when asked why he was looking on Broadway instead of where the watch was lost he replied “the light is so much better here.” Similarly, activists don’t use the incident that best exemplifies their cause, they use the most highly publicized event that can be linked to their cause, even if that link is tenuous. Because the light is so much better.

A meme that’s long gone. Take a look, a gander at this image. Norman Rockwell painted this (“The Runaway”, shown here) for a Saturday Evening Post cover that was published September 20, 1958. The imagery is perfect. Understanding cop — with a lot of time on his hands — reasoning with a lad who ran away. What would today’s version be? A kid sedated by a psychotropic cocktail, under lock and key or recovering after having been Tasered or beaten (or worse) for mouthing off to a cop. This is the crux of the problem: the militarization of the police. The destruction of the idea and notion that they’re to help and assist and not necessarily kick ass and take down names.

Compare this theme with today’s.

Seeming disparity of coverage and concern. Kelly Thomas, Dillon Taylor, Gil Collar. White guys beaten and shot to death by cops: white, non-white and black. (I still don’t know what the hell non-white means.) It’s relevant, it’s pertinent and it needs to be explored. Not because that excuses any alleged police overreaction but because it adds perspective. It adds light. The problem is endemic, inherent and knows not race as a primary factor. Correlation versus cause are two distinctly different considerations. Critial thinking and precise issue analysis are needed desperately.

Let me be brutally frank. I hate, no! I loathe discussions that victim categorize by race. What is this? Are we keeping a tally? No, that’s not the basis of my indictment. If a behavior is wrong, if a reaction is unwarranted, it’s wrong simply because it’s wrong. Likewise you can’t excuse wrongdoing simply because it’s rare and infrequent. A black suspect mistreated by cops is as wrong as a white suspect mistreated by cops. Cops who are trained professionals, I might add.

But what I cannot understand is the selective categorization of victim demographics. Yes, without a doubt, there are discrepancies between white and black treatment. True. The history of police treatment is marred and horrible to be sure. But issue analysis and critical thinking a required here. Let’s stick to the particular issue and framework that this disquisition attempts to address. Work with me in this one.

What the problem is and has been is an attitudinal militarization of police that has been exacerbated by the recent injection of 1033-like programs into police departments already burdened by historically entrenched and intrinsic racism. Without a doubt. let’s be clear: Racism has existed, the disparate treatment of criminal detainees and suspects still exists. Fine, let’s all stipulate to that and move on.

Here is the gravamen of my indictment.

  • Police training and institutional mindsets need immediate and drastic revision.
  • The celerity in the use of deadly force must be addressed. Alternatives to force and dispute resolution must be included in officers’ arsenal.
  • Racial arson, especially when fueled by those who seek to enjoy pecuniary gain, must be decried and attacked for what it is.
  • The mainstream media must seriously readdress the way in which it covers incendiary matters, especially in view of the 24/7 cable news wheel that feeds data and coverage without surcease with no recognizable sense of proportion, sobriety or responsibility.
  • The notion of the peace officer has gone the way of RoboCop. So long, Sheriff Andy. The message of the role of officer must be retooled and readdressed.
  • The principles of Posse Comitatus must be revisited to readdress the division between civilian law enforcement and military.

Good luck explicating this perspective. Ted Baxter and Ron Burgundy would be proud.