The Dish

Some remaining thoughts from readers regarding the grand jury decision and aftermath:

Your correspondent compared Ferguson to Benghazi:

There’s a narrative of racist-white-cop-kills-harmless-black-kid, and no matter what uncomfortable fact intrudes, like that so many “witnesses” admitted they didn’t actually see what they told the media they saw, the narrative must go on. Because racism.

You know, s/he’s not entirely wrong. But even if Micheal Brown had been holding an AR-15 in each hand when he was shot, everything that we’ve been talking about in the aftermath of his death about the systemic corruption, violence, impunity – and yes, institutional racism – of policing and incarceration in this country would still be true. The ugly, simple truth is that very few people will rally against injustice in the abstract, regardless of the scale. We just aren’t wired for that kind of empathy. (Stalin was right about tragedies and statistics.)  So is it a mistake to try to leverage a particular case to bring the bigger issues to the fore? It certainly is risky, and I think we are seeing why right now. But if there is a better way to go about it, I don’t think we’ve seen it yet.

Another would seem to concur:

I agree with your take on Ferguson. If your objective is to make an example of how police interact with young men of color, this isn’t a perfect case. It’s just attracted the most attention. And the response is making it worse. But this is where we are, with the incompetence and violence and rioting and everything. And every day that sees a riot, we get a little bit closer to forgetting Michael Brown.

Taking in the non-indictment and aftermath of the Brown tragedy, I think I understand a little bit more about your perspective on Matthew Shepard. One thing you can’t say about Shepard is that his life was wasted. He just wasn’t the person who took advantage of it. His parents and advocates of gay rights and hate crimes legislation – good or bad – made sure his name would ring out after he died. They took an imperfect case and made it count.

I want to remember Michael Brown as the namesake of laws around the country that require all police to wear body cameras. “Michael’s Law” has a nice ring to it.

Another goes after his fellow left-liberals:

When I listen to the commentary on the left, I can’t help hearing benevolent racism.

Because they do not seem inclined to accept that Michael Brown had the capacity to rise above the difficult socioeconomic disadvantages in his life. Because if they did have that faith in him, they would find fault with some incredibly bad decisions he made leading up to the altercation: 1) Getting super-high, 2) Stealing the cigars, 3) Walking down the middle of the street after commission of a crime, 4) Charging a police car, 5) Assaulting a police officer, 6) Evading arrest, 7) Turning back toward the police officer instead of going to the ground.

Did he deserve to die for this? Hell no! But nor is he the squeaky-clean victim of circumstance he is to much of the left. Yes, his low-income status, the racial disparities between the police and the neighborhoods, the failure of our education system, and on and on. There are structural factors that undoubtedly played a major role in this tragedy. But sending Darren Wilson to prison does not resolve any of those issues, nor does it provide “justice” to Brown’s family, despite the family’s claims to the contrary.

Yes, it’s damned hard to be black in America, today or any day. Or Hispanic. Or a woman. Or gay. But if we absolve disadvantaged groups of personal responsibility when something bad happens, how can we credit them with playing a role in their successes? We liberals need to be mindful of dehumanizing, demoralizing and frankly racist assumptions that inform our opinions.

An expert reflects on the previous commentary from readers:

Greetings from a charter subscriber, and many thanks for your wonderful blog.  A number of your readers have already addressed these points, but I’d like to add my perspective on the no true bill returned by the grand jury against Darren Wilson.

I have never served as a police officer, but I am a lawyer and have served as an FBI agent for 25 years.  Throughout my career I have worked extensively with various state and municipal police agencies.  I have undergone training that is no doubt similar to (though, because the federal government has a greater training budget than most municipal agencies, probably more extensive than) that received by Officer Wilson.  One of your other readers correctly pointed out that all law enforcement officers, when confronted with a situation in which deadly force is justified, are trained to shoot until the threat is eliminated.  That’s the precise language used in my training:  shoot to eliminate the threat.  If Officer Wilson was justified in shooting Michael Brown, he was justified to shoot him as many times as it took to eliminate him as a threat (whether he was in fact a threat is a question for a jury to decide, typically).

Your reader was also accurate in his description of the 1986 FBI Miami shootout, which had a tremendous impact on not only how FBI agents are armed and trained, but also impacted the arming and training of law enforcement officers throughout the country.  The FBI, specifically, adopted the short lived 10 mm pistol, and eventually the .40 caliber pistol, to give their agents more “stopping power” when confronted with deadly force situations.

With regard to the rarity of grand juries issuing no true bills, one of your other readers has already pointed out that prosecutors typically self-select  the strongest cases for presentation, which in part accounts for the cited statistics.  It’s also important to note that the statistics cited were for federal grand juries, which tend to be even more selective regarding case presentation than state grand juries.  In the federal system, with which I am very familiar, prosecutors have absolute discretion over what cases they present to the grand jury, and typically present only those of which they are certain to obtain an indictment.  Several states (and I believe Missouri is one, though I may be mistaken) mandate that all officer involved shootings be presented to a grand jury (a friend of mine went through this following his killing of an armed subject; the shooting was justified and the grand jury returned no true bill).  I’d imagine the return of no true bills before state grand juries aren’t quite as rare as they are in the federal system.

While the overwhelming majority of police officers I know are dedicated, competent and moral individuals, there is a systemic problem with how we police racially diverse urban areas. There is an “us against them” attitude among the officers I’ve known regarding significant numbers of the citizens they are sworn to serve and protect.  It is not, strictly speaking, a racial issue; some of the officers I’ve known with the greatest disdain for racial and ethnic minority communities are themselves members of those minority groups.  It is, I believe, more a function of the militarization of our police – not militarization in the sense of using tanks or other military hardware (though that is a problem), but rather the adoption of a military, or warrior, mindset.

Walk into the squad area of any police station or precinct in the country and you’re likely to see inspirational posters espousing the warrior ethos.  Many officers, including ones I admire in many ways, buy into this and believe they are going into combat each time they hit the street.  This has proved beneficial for police officers in general:  line-of-duty deaths have steadily declined over the past decades, and part of this is likely due to increased awareness of the dangers of their job that is, at least in part, attributable to the adoption of this mindset.  But it has come at great cost to the communities they police.

One more reader:

Apologies if this seems too obvious to mention, but the pieces and comments I’ve read regarding Michael Brown all suffer from the same error. People are trying to look through both ends of the telescope.  On the one hand, we know that cop-on-black violence is a problem that raises profound questions of racial and economic justice.  On the other hand, we are trying to deal with the facts and the system of evidence that the law requires.  It seems that people who say, “Well, the evidence does seem to suggest that the officer acted reasonably, given what we’re now learning” are being accused, either implicitly or explicitly, of denying that our nation has a systemic problem with these kinds of issues generally.

We need to be able to say that even if we have a systemic problem in our economy and culture that produces a lot of cases of unjust and tragic violence against black men (amongst others), we still may conclude in any given case that the violence was justified.  Or, looked at in the other direction: if we conclude (and we may not) that officer Wilson’s use of violence was justified, we can still conclude that our nation has a very serious problem that leads law enforcement to give violent expression to an economic and cultural system that is racially biased and unjust and that we have to change that system.

Those who feel that they have no way to express their outrage and who are protesting violently as a result, and those who are online decrying the injustice in this particular legal case have something in common: they are looking at the evidence of this case through the lens of larger questions of race and justice.  That lens distorts the evidence in any given case.

(Photo: Thousands of people protesting the grand jury’s decision about the fatal police shooting of black 18-year old Michael Brown in Ferguson, Missouri march onto the lanes of Interstate 580 after blocking the traffic for several hours near Lakeshore Avenue in Oakland, California on November 24, 2014. By Tayfun Coskun/Anadolu Agency/Getty Images)

Toobin blasts McCulloch for misusing the grand jury:

[T]he goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.

Noam Scheiber is on the same page:

Politically, I understand the advantage of this for McCulloch. He gets to wrap his preference for not indicting Wilson in the legitimacy of a trial-like process, whereas simply declining to indict Wilson without the support of a grand jury would have left him badly exposed. It would have triggered an enormous political backlash, rather than the relatively minor uproar we witnessed Monday night. But as a basic matter of justice, it’s outrageous. As I noted yesterday, the only way to earn the legitimacy of a trial is to actually have a trial, in which both positions are given a fair hearing.

Allahpundit asks, “What should McCulloch have done instead?”:

If he thought, as seems likely, based on the evidence that there was no chance a trial jury would convict Wilson even if he ended up being indicted, it would have been dubious of him to try to obtain the indictment in the first place. See David French’s point on prosecutorial abuse for more on that. A system where the D.A. is encouraged to charge someone in the full expectation that that charge will lead to acquittal is a bad system. Doing so also would have been irresponsible given the red-hot politics of the case. If he had gotten Wilson indicted for, say, manslaughter and then Wilson had been acquitted at trial a year from now, the criticism would be just the same — the system is biased, it doesn’t work, it doesn’t care about black lives — except that the city would have endured 12 more months of anxiety and paralysis while it waited for the verdict. If Wilson’s not going to prison, why not break that news sooner rather than later?

Rich Lowry echoes:

[W]e don’t try people for crimes they almost certainly didn’t commit just to satisfy a mob that will throw things at the police and burn down local businesses if it doesn’t get its way. If the grand jury had given into the pressure from the streets and indicted as an act of appeasement, the mayhem most likely would have only been delayed until the inevitable acquittal in a trial.

Jacob Sullum pushes back:

McCulloch clearly thought an elaborate grand jury process, coupled with public release of all the evidence presented to the jurors, would help keep the peace and mollify critics who feared that Wilson would get away with murder. But a real trial, even one ending in acquittal, would have been much more effective at achieving those goals. A public airing of the evidence, with ample opportunity for advocates on both sides to present and probe it, is what Brown’s family has been demanding all along. McCulloch took extraordinary steps to deny them that trial, thereby reinforcing the impression that the legal system is rigged against young black men and in favor of the white cops who shoot them.

Ezra Klein reads through the testimony of Dorian Johnson, Michael Brown’s friend who was with him when he died. Erza uses it to argue for a trial:

[W]here Wilson’s account presents Brown as completely irrational and borderline suicidal, Johnson’s account is more recognizable. It isn’t a blameless, kindly beat cop who gets set upon by a rampaging Michael Brown. And nor is it a blameless, kindly Michael Brown who gets set upon by a cold-blooded murderer with a badge.

It’s a cop who feels provoked by these two young black men who won’t get out of the street, and who tries to teach them a lesson, to put them in their place. His actions escalate the situation, and then the adrenaline floods, and then there’s a struggle, and the situation escalates, and escalates, and escalates, and then Darren Wilson shoots Michael Brown and Michael Brown dies.

All this happened in less than two minutes. The fight happened in even less than that. And so there’s also room for both accounts to be subjectively right. With the adrenaline pumping Wilson might really have grabbed Brown first, but then thought Brown was trying to grab his gun, or beat him to a pulp, even as he was really trying to get away. Brown might have sworn at the cop who almost clipped him with a truck, but after that, he might have really been trying to simply survive the altercation.

Indeed, we might never get to the truth of what happened in those two minutes on August. But the point of a trial would have been to get us closer.

Clive Crook considers the grand jury fracas a condemnation of the justice system as a whole:

A jury may well have found Wilson innocent. Much of the evidence, so far as one can tell, leans in his favor. But there should unquestionably have been a trial. If you ask me, probable cause to indict him for unlawful killing resided in the single word “unarmed” — and that’s to say nothing of the conflicting testimony about whether an already wounded Michael Brown was about to attack Wilson when the fatal shots were fired.

The larger issue — and in this system I see no way to address it — is that in cases such as these, the law-enforcement complex is judging its own conduct. Police and prosecutors seem to get bigger guns and more powers every time policymakers turn their attention to the subject; the trend never seems to go the other way. With this growing and potentially tyrannical power goes the vital necessity of ensuring that officers of the law are held properly to account. And they aren’t. It’s as simple as that.

Sullum doesn’t buy the argument that drugs led to Michael Brown’s death:

One challenge for anyone pushing a pharmacological explanation of Brown’s alleged behavior: Despite speculation that he was on PCP, marijuana is the only drug that was detected in his blood. Kathi Alizadeh and Sheila Whirley, the assistant county prosecutors who presented evidence to the grand jury, did what they could with pot, raising the possibility that Brown had smoked enough to experience “paranoia,” “hallucinations,” and maybe even a “psychotic episode.” They planted that idea in jurors’ heads mainly by presenting a toxicologist’s misleading testimony about the amount of THC in Brown’s blood and the possible effects of large doses.

The toxicologist testified that Brown’s blood contained 12 nanograms of active THC per milliliter, a level that he said indicated Brown had consumed cannabis in the previous two or three hours. That contradicted testimony by Dorian Johnson, the friend who was with Brown when Wilson shot him. Johnson, who said he was with Brown all day, testified that they had planned to get high (hence the cigarillos that Brown stole from a convenience store) but never got around to it. Despite the blood test results, Johnson could be telling the truth. Daily marijuana users have been known to register 12 nanograms or more when they get up in the morning, and they may even perform competently on driving tests at that level.

German Lopez reviews the literature on pot and aggression:

While some research suggests marijuana users are more likely to be aggressive, multiple studies have found the connection between marijuana use and aggression fades away when controlling for other variables such as alcohol and hard drug use. Marijuana use, in other words, doesn’t appear to lead to more violence, and higher pot use doesn’t even correlate with more violence if other factors are taken into account.

A recent study on the topic, from researchers at the University of Tennessee in Knoxville, found that there’s no connection between domestic abuse and marijuana. The Knoxville researchers acknowledged that the issue needs more study, especially given the conflicting findings in previous studies. But the study shows that a link between pot and aggression is, at the very least, nowhere close to established.