Archive for November, 2014

Ferguson Q&A

Tuesday, November 25th, 2014

From Tumblr:

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I haven’t seen the actual evidence yet, so I’ll hold off on analyzing the case just yet.

As for the prosecutor’s actions? I think it was a strategy of wussing out.

Let me explain:

I’m pretty sure the prosecutor decided early on that either (1) there was no crime here, or (2) there was insufficient evidence to prove one beyond a reasonable doubt, and that therefore the case should not be prosecuted. (IIRC, the DOJ also looked at the evidence and said they weren’t going to proceed criminally.) I myself have no idea whether this ought to have been prosecuted or not, but the way this all played out, I’m almost certain that the prosecutor himself didn’t think so.

What a prosecutor is supposed to do in that circumstance is simple: Decline to prosecute. If you don’t think someone committed a crime, you don’t subject them to the criminal justice system, period. You don’t “let a jury sort it out.” You don’t initiate the process to convict and punish a human being whom you don’t believe to be guilty in the first place. He didn’t do it? Let him go.

Similarly, if the prosecutor thinks the crime was committed, but doesn’t have enough evidence to prove it beyond a reasonable doubt, he’s supposed to decline to prosecute. Period. You don’t “zealously advocate” for conviction like some sort of civil litigator and hope the adversarial system achieves justice for you. You can’t prove it? Let him go.

Instead, this prosecutor wussed out. Having decided that this is a case that should not be prosecuted, he failed to act accordingly. I’m pretty sure he was afraid that, if he stood by his decision, he’d be pilloried in the press as covering up for the police and as just another white law enforcement asshole perpetuating all this injustice. So he decided not to make the decision at all. “Leave it up to the grand jury,” he thought, “and that way it’s their decision, not mine, and I can’t be blamed.”

That’s cowardly. A prosecutor is supposed to have the judgment to make these calls, and the balls to go ahead and… you know… make the call. Not pass the buck and the blame to an anonymous group of citizens shanghaied into a bureaucratic process.

The prosecutor then presented all of the available evidence to the grand jury, instead of the usual bare-bones presentation. [Ordinarily, you give the jury grand jury just enough evidence to ask them whether there’s probable cause to let you proceed to trial.] This is not, in itself, a bad thing. I myself tended to give grand juries all of the relevant evidence at my disposal. [Unlike many prosecutors who are afraid of creating cross-examination fodder for the defense, or give details that an alibi could be constructed around, I simply preferred to show them that I’m holding all the cards. A much better strategy, in my experience.] And I had grand jury presentations that lasted more than twice as long as this one did (though, granted, they tended to involve years’ worth of wiretaps and surveillance or warehouses full of documents, rather than a single event that lasted a few minutes). My point is, the amount of evidence and the length of the proceeding don’t offend me in the slightest.

But here, the reason why the prosecutor gave the grand jury all of the evidence was plainly to pass the buck. He didn’t want anyone saying he’d cherry-picked the evidence to make it look like the cop didn’t do anything wrong. No sir! Rather than let anyone think he’d influenced the decision in any way, he would simply present everything and let the grand jurors sort it out.

That’s passing the buck. That’s wussiness of lowest degree.

And what was the result? Did he avoid finger-pointing? No! The people who would have pointed fingers at him were going to do so regardless, and theydid so regardless. Instead of accusing him of cherry-picking the evidence, he’s accused of presenting too much, of [gasp!] showing his Brady material to the grand jury, of letting the defendant tell his side of the story (defendants have the right to do so, by the way).

Did he avoid accusations of being the police’s advocate, of being yet another white cog in the injustice machine? No! His unusual tactics just made everyone more suspicious that he was doing something fishy. His failure to get an indictment when everyone knows you can indict a ham sandwich makes people think he threw the game.

Not only did he fail to avoid criticism, he made it worse. By failing to have the courage of his convictions, he undermined everyone’s perception of the justice of the system. And perception is EVERYTHING in this game. Everything. If the public doesn’t perceive that justice is being done as a matter of course, then the system loses legitimacy and things can go to hell really fast.

Not only did he do precisely that which would undermine the trust of those whose trust he needed to win back so desperately… he put a man whom he clearly believed should not go to trial at risk of being subjected to a circus of a trial and a punishment that public blood lust would guarantee to be severe. A punishment the prosecutor himself did not think was deserved. Again, I don’t know whether it was deserved or not, but the fact that the prosecutor was willing to subject another human being to that… solely to avoid a little criticism?

It’s beyond cowardly. It’s despicable.

Even if he thought the guy was guilty, everything he did was the opposite of what a prosecutor’s supposed to do. He made everything worse.