Yglesias Award Nominee

“As I was blearily trying to indicate last night, I am open to the argument that McCulloch was in fact not right. I said his critics have a point. And as I read up on the proceeding this morning, I think that point gets stronger. For those who believe Michael Brown was murdered, what they see is a prosecutor who bent over backwards for a police officer in a way he never would have for nearly any other criminal suspect in the dock. McCulloch let Wilson testify at great length … If McCulloch was determined to get an indictment, this process wouldn’t have taken nearly as long … For those who want me to be all on one side or another of this (Twitter has been an ugly place for the last twelve hours), all I can say is that I am honestly conflicted. Even in this obscenely polarizing chapter of American life, not everything is black and white,” – Jonah Goldberg, NRO.

The Prosecution’s Weak Case Against The Media

I suspect part of what’s behind the frustration of people like McCulloch is that social media makes everyone a critic. Thousands and thousands of people are watching over your shoulder to see if you slip up, checking what you missed, judging whether you were thorough enough, questioning your agenda. Good. Having everyone watch you do your job, or not do it, may be a pain, it may be stressful, but in an imperfect justice system, it’s not exactly a bad thing.

Tim Mak Arthur Chu agrees:

“Blaming the media” for always distorting the story, for making a big deal out of minor misunderstandings, for drawing attention to things that “aren’t any of their business”—it’s the favorite rhetorical trick of powerful people who want to be left to continue doing what they were doing. Sure, the media frequently make terrible mistakes. But a kneejerk rejection of “the media” and a demand for those of us in the audience to “mind our own business” is an implicit statement that the people the media make miserable—business owners, politicians, police chiefs, celebrities—don’t make mistakes. It’s an implicit call to trust them to do the right thing without fear of external scrutiny.

Obama Bites His Tongue On Ferguson

Last night, Beutler called on the president to give a big speech on Ferguson:

This is Obama’s first opportunity (for lack of a better word) to use the bully pulpit to steer the national agenda in a positive direction since the slaughter at Newtown, Connecticut, and it’s the first time since he became a national figure that he’ll be able to address a racially charged issue without an election in his future to deter him.

But the statement Obama delivered last night, as Cillizza remarks, “was almost doomed from the start”:

The combination of Obama’s status as the nation’s first black president and the powerful visuals coming out of Ferguson, which are catnip for cable TV, made it a) absolutely necessary that he speak about Ferguson on Monday night and b) absolutely inevitable that whatever he said would be criticized by almost everyone emotionally invested in the story — and outrun by events on the ground that were being broadcast simultaneously with his remarks.

That sort of lose-lose proposition is increasingly becoming a hallmark of the modern presidency.

How Ezra understands Obama’s dilemma:

Obama’s language didn’t soar tonight, just as it didn’t soar in his first set of remarks on Ferguson. And that’s because Obama can manage polarization on immigration in a way he can’t manage polarization on race.

President Obama might still decide to give a major speech about events in Ferguson. But it probably won’t be the speech many of his supporters want.When Obama gave the first Race Speech he was a unifying figure trying to win the Democratic nomination. Today he’s a divisive figure who needs to govern the whole country. For Obama, the cost of becoming president was sacrificing the unique gift that made him president.

Jesse Walker questions whether such speeches matter:

I watched an Obama speech tonight. The cable channels aired it in a split screen with footage from Ferguson, so as the president urged calm I could see a live feed of the country ignoring him. His comments were predictable and bland, but even if he’d given us the most stirring rhetoric of his career I can’t imagine that it would have made much difference. This is the news, not The West Wing. Words are cheap.

Julia Azari considers the purpose of presidential speeches:

There are a number of perspectives on crisis rhetoric and on the purposes of presidential speech, but one idea that drives at many of the key points is communication scholar David Zarefsky’s argument that presidential rhetoric has the power to “define political reality.” To quickly synthesize Zarefsky’s point with other work on presidential communication (including my own), this kind of communication has a few main purposes. These include putting a political situation in the context of the past, particularly our Constitutional heritage, and applying a useful and resonant metaphor to the situation that allows us to understand what caused the problem and what kinds of solutions are available. In other words, presidential speech can provide a common text for all citizens to understand a situation, and provide a sense of what the policy alternatives are, even if agreement among them remains elusive.

This is a tremendously difficult task. When non-white human beings have been historically denied full citizenship, how does anyone begin to forge a common understanding of an event that rings true across racial and ethnic lines? How can anyone transcend the polarized state of American politics?

What To Make Of Ferguson? Ctd

Many readers comment on the story of the week:

After reading some of Darren Wilson’s testimony, I couldn’t help but automatically think of two separate posts I have read on the Dish before – this one, which talks about a study that finds how whites think black people are magical/supernatural, and this one, about how whites, and especially the police, overestimate the ages of black kids. Both of these studies could have some insight into Wilson’s thinking as he unloaded his clip into an unarmed black teenager, whom he described as looking like a “demon” and able to charge through bullets.

Another continues along those lines:

The rhetoric Wilson used may or may not have been “dehumanizing”, but those were the words of a police officer who was so terrified that he didn’t employ any other means of defusing the situation other than with deadly force, and he came to that conclusion in less than 90 seconds. If Wilson truly believed Brown was a “demon”, he had no business wearing a badge or carrying a gun, just based on the complete panic conveyed in his own words. The conduct of the entire Ferguson PD this whole time was that of a police force that held the citizens of the community with deep contempt, so it’s not surprising that Wilson approached this situation immediately as a worst-case scenario. It’s not even a racial reaction in my opinion; it’s a systemic failure of community policing and police training. Given Wilson’s previous run-in with the community where he displayed neither judgement or emotional control, what happened with Brown looks inevitable in hindsight.

Another dissents:

Andrew, I’m begging you for the second time, please don’t make comments about firearms anymore. How can you say Wilson had “no need” to shoot Brown that many times? The reason law enforcement went to high-capacity handguns and dumped the six shooters is because of the ability of people to withstand multiple gunshot wounds and continue fighting  (or shooting.) The catalyst for this approach was the 1986 Miami shooting in which to FBI officers were killed AFTER they had shot two bank robbers multiple times.  The robbers eventually died of their wounds, but in the meantime, they kept firing and killed the agents. Officer Wilson adhered to his training: shoot until the suspect is on the ground.

Another makes the same argument and adds:

I consider myself a leftist in good standing, but frankly, Mike Brown is to the Left what Benghazi is to the Right.

Preconceptions are everything. Facts don’t matter. Logic doesn’t matter. 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.

Another is roughly on the same page:

Maybe lethal force wasn’t necessary, but science has proven that Brown turned and moved back toward Wilson (at least 20 feet) and was not shot from behind. There was undeniably an altercation at/inside the police cruiser. Does the fact that one man is alive and one is dead skew the way those facts are interpreted? Absolutely. But there exist certain physical certainties that strongly suggest this was not cold-blooded murder.

I agree entirely that this should have gone to trial and realize that, statistically, nearly everything reviewed by a grand jury does. I agree that the fact Wilson will never even face charges is a mark of shame on the legal system. But I don’t get the sense that the people who are furious about this, whatever their race, are clamoring for a trial they’ll never see; it seems to me they’re clamoring for a conviction they feel they’ve been cheated out of. To the detriment of all of us, that belief is yet one more fault line that fractures and splinters us and renders impossible the hard, uncomfortable discussions we still need to have about race in this country.

Some strong pushback from an African-American woman:

While I appreciate your always-nuanced analysis, a few points of dissent: First, Michael Brown was not a “criminal”, as he had not been charged and convicted of anything. He was accused of petty theft, which is a misdemeanor. But alas, your facile use of the word speaks to the ease with which Black men are labeled as such, so as to be quickly demonized.

Secondly, you seemingly contradict yourself, because Balko’s article makes clear that this is not an environment where the police are protecting and serving but instead harassing and self-serving. I am in no way justifying assailing a police officer (or anyone for that matter), verbally or physically, but you are not a young Black man living in what is still ostensibly the South and facing harassment for just being. I challenge you to invite Black males to tell you their stories of police harassment. How many times they have been detained, cuffed, kicked and threatened with death because they fit a profile, looked suspicious or were just somewhere some cop didn’t think they belonged? Yes, this is in America.

Thirdly, seriously: “And yes, primordial racial feelings may well have been part of the mix.”? He described him as a “demon”, “Hulk Hogan” even. Have you not seen the recent study that shows that White people in fact do see Blacks as super-human?

You are surely not ignorant, Andrew, but there is an interminable, sometimes slight, sometimes massive burden that comes with Blackness that you seem wholly oblivious to. That 12 year old that was shot in Cleveland was sitting on a swing playing with a fake gun. Two things happened due purely to his Blackness: police were called and he was murdered. Full stop. The Black man shot in the stairwell of his building in NYC for just existing while Black because a cop got scared.  And that’s just since Monday.

Clive Bundy assails and threatens federal officers and gets invited on Fox News. Eric Frein plans and carries out an attack on state trooper barracks, killing one and seriously wounding another – again brought in alive. Ted Nugent scares the shit out of me with his racism, misogyny, anti-government and gun-humping ways, but yet he’s a hero to many White people and no one seems to have shot him yet either. White people have feared, reviled and vilified Blackness since they first laid eyes upon us. The codification and justification of our enslavement, disenfranchisement and murder is beyond primordial; it is part and parcel of what has made America and the Western world. Ferguson is just another eruption in this racist legacy and reality.

Update from a reader:

I agree with those who are stating that Officer Wilson was, at least, poorly trained and may not have been fit to be an officer in the first place.  Like many justifiable police shootings, it didn’t have to go that way.

But on of your readers claimed that, at most, Brown was guilty of petit theft, which is a misdemeanor.  This is incorrect.  Brown not only stole from the convenience store, he assaulted the business owner who tried to stop him from stealing.  This assault escalated Brown’s theft to a strong-arm robbery, which is a second-degree felony in the State of Missouri.  And it was Brown’s commission of this felony that began the chain of events that led to his death.  He had nobody but himself to blame for that – not Officer Wilson, not the prosecutor, and not racism.

It’s Hard To Indict A Cop

Amanda Taub explains why – and advocates for making it easier:

Paul Cassell, on the other hand, defends the grand jury process and criticizes some Michael Brown supporters:

Did the grand jury get it right — that is, was there insufficient evidence to indict?  A fair answer to that question can only come from reading the testimony of 60 witnesses, something that critics of the grand jury’s decision have obviously not yet bothered to do.  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.

However, Noam Scheiber contends that Prosecutor Robert McCulloch’s “entire presentation implicitly conceded the need for a trial”:

McCulloch was under no obligation to discuss this evidence publicly. Nor was he under any obligation to release the evidence into the public domain following his remarks, as he repeatedly pledged to do. He presumably did these things to assure us that the decision not to prosecute Wilson was arrived at fairly and justly. The problem with this is that we already have a forum for establishing the underlying facts of a caseand, no less important, for convincing the public that justice is being served in a particular case. It’s called a trial. It, rather than the post-grand jury press conference, is where lawyers typically introduce mounds of evidence to the public, litigate arguments extensively, and generally establish whether or not someone is guilty of a crime.

Howard Wasserman asks questions:

Is it the grand jury’s role to weigh and select between conflicting evidence in deciding whether to indict? The DA made much of the conflict between the physical evidence and the testimony of witnesses, as well as the inconsistency between different witnesses and between statements by particular witnesses. But is that the issue for a grand jury determining probable cause? Or is that supposed to be left for an open trial on culpability? Is it typical for the prosecutor to point out those inconsistencies now? Or is that for defense counsel at trial? Here are two arguments on that, noting that the DA spoke of the grand jury’s job as to “separate fact from fiction.” Is that wrong?

David Feige joins the conversation:

There is no question that McCulloch is right when he says that none of us know the evidence the way the grand jury does. And it may well be that the decision not to indict Wilson was legally proper. But what’s improper about what happened was peddling the idea of grand jury independence as a cover for political cowardice.

And Scott Shackford reframes the debate:

Based on the information McCulloch described tonight it may seem unlikely Wilson would have convicted, and perhaps that would have been the right decision by a criminal jury. That raises yet another question, though: Should we be upset at the amount of deference and effort made to find reasons not to indict Wilson in this case or should we be upset that the same doesn’t happen to the rest of us? Is the outrage that a grand jury didn’t indict Wilson or is the outrage that the grand jury indicts just about everybody else?

Will Michael Brown’s Death Be A Turning Point?

After seeing the evidence, John McWhorter is skeptical:

[A]s someone who has written in ardent sympathy with the Ferguson protests, I find this hard to write, but I have decided that it would be dishonest of me to hold back. As I have written endlessly, America will never get past race without a profound change in how police forces relate to black men. However, I’m not sure that what happened to Michael Brown — and the indictment that did not happen to Officer Darren Wilson — is going to be useful as a rallying cry about police brutality and racism in America.

Based on the evidence known to us now, a common take will be that the incident proceeded thusly:

Brown stole from a convenience store, Wilson tried to stop him based on his description. Brown refused to stop and physically assaulted Wilson in his car, Wilson shot Brown in self-defense. Brown ran about 150 ft. from the car. He then ran 25 ft. back toward Wilson, likely trying to indicate surrender. Wilson thought Brown was trying to reinitiate the assault and fired further, which killed Brown. This was a hideous misunderstanding. And yes, if the guy lurching back toward Wilson had been white, just maybe he wouldn’t have fired those last shots.

But can we really know that surely enough to enlighten a nation? We are told that this tragic sequence of actions shows that America “devalues black bodies,” as a common phrasing has it. But I fear the facts on this specific incident are too knotted to coax a critical mass of America into seeing a civil rights icon in Brown and an institutionally racist devil in Wilson.

Perfectly and poignantly put.

Finding The System Guilty

Grand Jury Decision Reached In Ferguson Shooting Case

Freddie declares “this outcome, and so many like it, are the result of a system functioning the way it is intended to function. Racism is baked right into the foundation”:

Every one of those grand jurors might have hearts of purest gold. The outcome was predetermined precisely because the outcome did not rely on the individual character of the jurors. We have police aggression against black people because the white moneyed classes of this country have demanded aggressive policing and the moneyed control our policy. We have police aggression because the War on Drugs provokes it and we still have a War on Drugs because the War on Drugs puts vast amounts of tax dollars in the hands of police departments and a voracious prison industrial complex. We have police aggression against black people because centuries of gerrymandering and political manipulation have been undertaken with the explicit purpose of empowering some people and disenfranchising others.

None of that can be solved through having pure hearts and pure minds. Racism is not a problem of mind. Racism cannot be combated by individuals not being racist. A pure heart makes no difference. In response to systemic injustice, you’ve got to change the systems themselves. It’s the only thing that will ever work.

Jamelle Bouie argues along the same lines:

It would have been powerful to see charges filed against Darren Wilson. At the same time, actual justice for Michael Brown—a world in which young men like Michael Brown can’t be gunned down without consequences—won’t come from the criminal justice system. Our courts and juries aren’t impartial arbiters—they exist inside society, not outside of it—and they can only provide as much justice as society is willing to give.

(Photo: Police confront protestors after rioting broke out following the grand jury announcement in the Michael Brown case on November 24, 2014 in Ferguson, Missouri. By Scott Olson/Getty Images)

The Legal Options Left In Ferguson

Rashad Robinson wants the DOJ to charge Wilson:

Now, justice for Brown lies in the hands of president Barack Obama and US attorney general Eric Holder. The Department of Justice is investigating the death and has the power and responsibility to arrest and prosecute officer Wilson under federal criminal charges. It’s up to our national leaders to step in where Missouri’s politicians have failed, and secure justice for Brown immediately.

Jacob Sullum highly doubts the DOJ will take action:

The relevant statute is Title 18, Section 242, which makes it a federal crime to “willfully” deprive someone of his constitutional rights “under color of any law.” If death results, this crime can be punished by a life sentence or even by execution. But it requires a specific intent to violate someone’s rights, and there is little evidence that Wilson had such an intent.

Jonathan Cohn agrees that the DOJ charging Wilson is unlikely:

But the Ferguson police department is also under investigation, from the Justice Department, and that investigation could very well end in some kind of “consent decree” under which the police changed policies under close federal supervision. It’s happened that way in other jurisdictions where police have come under attack for mistreating racial minoritiesand, as Rebecca Leber has noted, many experts think such arrangements have produced better policing and improved community relations.

The Ferguson Police Department also still has its own internal investigation into Wilson’s conduct, and Missouri’s Department of Public Safety has the right to revoke Wilson’s certification to be a police officer. The most likely remaining legal action against Wilson, though, is a possible civil suit filed by Brown’s family. The burden of proof in wrongful death or civil rights cases is considerably lower than in criminal cases, and the most Brown’s family could hope for is financial penalties and, perhaps, some sense of judicial vindication.

Darren Wilson’s Side Of The Story

Wilson Injury

From a writeup of last night’s grand jury decision:

Wilson testified that Brown punched him in the head after the door-slam, causing him to fear for his life. The teen took off after the first two shots but then stopped, the officer said. “His right (hand) goes under his shirt in his waistband and he starts running at me,” Wilson told the jury. “I tell, keep telling him to go to the ground. He doesn’t. I shoot a series of shots. I don’t know how many I shot.” Ten shots were fired from outside of the police car. McCulloch added that Wilson suffered “some swelling and redness to his face” — potential evidence that he was punched. Hospital photos shown to the grand jury depicted a minimally injured Wilson with some discoloration on his right cheek and the back of his neck.

Josh Marshall highlights another part of Wilson’s testimony:

Fraught and loaded with meaning, Darren Wilson told the St. Louis County grand jury that during his scuffle with Michael Brown, the 18 year old Brown looked “angry”, like a “demon.” This is a classic case of a statement that people on both sides will see through profoundly different lights. For Wilson’s supporters, it’s Wilson’s confirmation that Brown was a thug, an out of control violent malefactor. For Brown supporters, there’s little more graphic evidence of the dehumanization that lead to Brown’s killing.

Friedersdorf reads through testimony by Wilson and witnesses. His takeaway:

I haven’t yet had time to go through all the documents released by St. Louis County, but based on these witness statements, I can see why the grand jury would have reason to doubt whether Officer Wilson committed a crime. At least some witnesses corroborate his story. Some that don’t contradict one another. If the witnesses above all testified in a criminal trial, it’s hard to imagine that a jury would fail to have reasonable doubts about what really happened. There are hundreds of pages to sift through that the grand jury saw. In coming days, we’ll probably discover at least some eyewitness testimony contradicted by physical evidence. But it seems all but certain that we’ll never know exactly what happened that day.

Paul Campos adds:

Cases like this bring to mind Akira Kurosawa’s Rashomon, the film that famously features the depiction of a violent incident from the perspectives of four witness-participants. The witnesses all contradict each other on various key points, and the audience is left to ponder how difficult it is to discern what really happened in a world full of biased, confused, and, otherwise unreliable storytellers.

Jonathan Ellis provides more highlights from Wilson’s testimony. All the released evidence can be found here.

Chart Of The Day

162000

Update from a reader:

I’m a lawyer and I studied Epidemiology at Harvard, so I know bad and misleading statistics when I see them. Yes, failures to indict are rare, because under normal circumstances prosecutors only seek indictments when they have strong cases!

This is what we call “selection bias.” If Michael Brown had been white, there would have been no media outcry, and no protests (google “Dillon Taylor,” a white guy shot by police in Utah at the same time Ferguson was going down). Under normal circumstances, a prosecutor would have determined very quickly that Darren Wilson hadn’t done anything wrong, and the case would never have been presented to a grand jury.

In this case, because of outcry (stoked largely by early reporting that seemed to suggest that Wilson had gunned down Brown in cold blood for no reason,) the prosecutor had to take the case to a grand jury to appease the crowd. But the facts never supported an indictment.

We saw this before with Trayvon Martin; a prosecutor tries a fatally weak case under political pressure and inevitably fails. Paradoxically, this makes people more angry, because they don’t understand that these cases would never have been brought in the first place absent outcry.

Even Nate Silver has been passing around the rarity of failures to indict as if that tells us something about the current case. He should know better.

Another reader:

As the website admits, it is a chart of federal indictments, not state indictments. State and county grand juries fail to bring indictments in Missouri at a far higher rate, a quick perusal of Nexis shows.

More feedback “from a former criminal defense attorney”:

I think a lot of folks are missing the multitude of ways this grand jury was handled abnormally. Remember, it isn’t an adversarial proceeding; it is entirely under the control of the prosecutors. In a typical grand jury, the prosecutors do not present evidence that is obviously incorrect, such as the witnesses who said Wilson fired at a running Brown from inside the car. That’s obvious mistaken and therefore not evidence of anything.

Why did they bring out all that garbage before the grand jury? For the same reason that Fox News goes on a tirade over everything Obama, in the hopes that a cumulative impression will be formed that the witnesses were making things up, even as the individual elements of that narrative don’t hold up. And there’s no one in the grand jury room to say “well if you know this guy is wrong, why is he here?” But it was even worse than that. In the transcript, when witnesses testified that rather than running toward Wilson, Brown was actually staggering to the ground, the prosecutor said – in front of the grand jury! – “But that physical evidence contradicts your testimony.” (Which isn’t true – the physical evidence in this case is neutral on this critical point.) In other words, this was not, as McCulloch claimed, a presenting of all evidence, neutrally, to the grand jury. This was out and out advocacy for no indictment.

This is how its supposed to work: If the prosecutor does not believe he can win a conviction, the case ends there and doesn’t go to a grand jury. He exercises prosecutorial discretion. This happens ALL the time. If the prosecutor thinks he has a case, he goes to the grand jury and presents his case. He doesn’t present both sides because this isn’t an adversarial trial that can probe conflicting evidence. The sole question is whether the prosecutor can make his case. If there are witnesses who see a crime contradicted by witnesses who don’t, the trial jury decides after both sides question the witnesses. In the grand jury, the decision is merely whether the prosecutor can proceed. Then the indictment (or, more rarely, no indictment) is released during business hours, even in high profile cases. There are rarely press conferences, but when they occur the prosecutors lay out the charges. They do not advocate their case. They do not whine about social media. They do not speculate farther than the question at hand (In other words, all McCulloch had to say was that the grand jury found no basis for an indictment, yet he went farther and claimed the shooting was justified, an entirely different question.) They do not parade out discredited evidence.

I am open to the possibility that this was not a case that could end in conviction. But we cannot draw any conclusions about the facts from this travesty of a proceeding. It has no credibility. And I’m not even getting to the timing of the announcement – waiting hours and then 20 minutes more as the tension built and built, as if they wanted a riot.

(Chart via Philip Bump)