Saturday, November 29, 2014

The Ferguson Fail, A Process Run Amuck

What is prosecutorial misconduct? Is the prosecutor in the Michael Brown Ferguson, MO, police shooting case guilty of it? There are many elements that can constitute prosecutorial misconduct. The prosecutor in this case, Bob McCulloch, according to many renowned legal minds has crossed the line with the Michael Brown Grand Jury. Is the Grand Jury process at fault in this case and other cases across our nation? In a nutshell, recent decisions by courts and juries have left many people in America pondering the answer to these questions.

The Process Is The Issue In Ferguson!

As a rule of thumb, we pride ourselves here at the House of Public Discourse in researching our points for accuracy and with an open-mind. Our research over the last several days has concluded the Grand Jury process in Ferguson as problematic and may have come to the level of misconduct by the prosecutor overseeing this case. Much of this dysfunction stems from witness accounts of the incident. The misconduct in the case primarily revolves around the handling of these eye-witness accounts. For example, we have found stories of so-called anonymous witnesses for the officer in this case who remain anonymous for fear of reprisals from the local community. Many well-respected legal minds some who identify themselves as political right thinkers claim this case was a miscarriage of justice.
Officer Darren Wilson

Another problem surrounding this issue is a low bar we have placed on the taking of a human life by a police officer. The judicial process by  court precedent has given police officers a wide latitude in situations like in Ferguson. However, " death by cop," is on the rise in our nation to the point of being an epidemic. Moreover, a large portion of these killings involves " white cop," shooting a " black male." 

As in any situation there are truisms and realities. The justice system in America is adverse. Most of the time,  a cop and a prosecutor are on the same side in this adversarial system. The reality? It is harder to convict a police officer of a crime than a civilian. In most police shooting cases, a police officer will claim his life felt threatened. Unfortunately for the victim's families, proving otherwise has been a high bar to meet. Both the Trayvon Martin and Michael Brown shootings attest to this reality. 
More importantly where do the solutions lie? First, cameras on cops make a ton of sense. Second, we need to reform our criminal justice system. Our research on many levels and for many reasons conclude "We The People," need to put a better mechanism in place to ' police the police.' 

Does Our Legal System Sanitize The Behavior Of Police Officers?    

There is one sure thing that has materialized  in the case of Michael Brown. This case has brought an awareness of the need to reform the Grand Jury process. There is no arguing the national media attention in this case created a unique set of challenges for the prosecutor.

But law professors and legal experts had sharply varying views on whether the presentation of the non-indictment and legal procedures were followed appropriately, adequately or fairly. [See Source]

Judge Scalia
It is the grand jury’s function not ‘to inquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880).

The Specifics 

In our legal system, a suspect under a grand jury investigation has never been thought to have the right to testify or to have exculpatory evidence presented.[See Source] In this case, the prosecutor McCulloch allowed officer Wilson to give evidence for hours and including every morsel of exculpatory evidence he could muster.  Knowing the basic of exculpatory evidence is vital to understanding the malfunction and misconduct that this case has presented.

The Prosecutors Instructions To The Grand Jury.  

Bob McCulloch

"And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in the evidence." [See Article]
By allowing officer Williams to testify for hours and allowing exculpatory evidence to be presented in support of these above-mentioned " complete defenses," this prosecutor has ignored how grand juries have functioned historically. There were several eye-witness accounts in this matter that suggest officer Wilson did not act in self-defense. This prosecutor could have but did not present these testimonies. Many critics of McCulloch allege he should have and if he would have done so an indictment would have come with a quickness. We here at the House of Public Discourse ask the question Why? What were  McCulloch's motivations for not allowing this testimony. We are not for a second buying the notions that these citizens were not credible. Our gut feelings tell us there are  more deviate motivations behind McCulloch's action or non-action in this grand jury process.

" Lock Them up, and Throw Away The Key," Nancy Grace has a problem with this case.

What happened with this Ferguson grand jury is rare. With all the leaks coming forth from this grand jury, it was reasonable to conclude there was not going to be an indictment in this case. Missouri is known as the " show-me-state." When the National Guard was sent in days before the verdict by that state's governor, it showed this writer all I needed to know or see. Grand Juries in this country almost always indict.

Or at least they nearly always do so in cases that don’t involve police officers.

In 2010, a study was conducted. In 162,000 federal cases brought before a grand jury, only 11 failed to indict.[Federal Bureau StatisticsIn the Wilson case this matter was heard in state courts. In Missouri, like most states, the prosecutor has the option to bring a suspect before a judge as opposed to a grand jury. The fact is many routine cases never go before a grand jury. However, with that said, it is common knowledge that it is very rare for a prosecutor not to get an indictment from a grand jury. Cases involving police shootings is are exception to this factoid. First of all, there is no real good data on police involved shootings. But researching  many newspaper articles on the subject, grand juries more often than not, by an extensive margin decline to indict law-enforcement officials.   

Police have been nearly immune from criminal charges in shootings in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004[See Source

Our research has led us to some reasons for this. One of the biggest barriers in procuring a conviction of a police officer is juror bias. No matter the evidence, jurors tend to trust the cops and seem to side with the police in their use of violence in police-related cases. There is also a prosecutorial bias. Whether their actions are conscious or unconscious, prosecutors who depend on cops in their work in criminal cases tend to present less compelling cases against police officers. Another reason is prosecutors only bring cases to the grand jury they feel they can win. There was no way the prosecutor in the Michael Brown case was going to drop the charges in this highly publicized case. There was no way this prosecutor could do that because of the many eye-witness accounts of the incident. However, as we have noted, he could change the process and tailor a sheepish grand jury to his privy. In short, there was too much evidence against the officer Wilson to not bring charges.

Beyond Ferguson, We The People Must Answer The Question, Why Are Grand Juries So Reluctant To Indict Police Officers? 

Voices From The House!

"Yes rioting is an extreme expression of anger and frustration. However, the actual issue being ignored is racism. If Michael Brown did everything he's accused of then he was wrong. However, racism is the issue being protested and is the elephant in the middle of the room. It is an issue that has never gone away.
Yes, some of the rioting is about opportunity and group mentality. Yes, I have studied it. The larger issue rears its ugly historical head as opportunity for the corporate rulers. Racism within the ruling class wants us to fight about the details.
There is an old saying that "the devil is in the details." It absolutely applies in terms of the mass media presentation of facts and or commentary. Divide and conquer is the oldest trick in the book." [House Mentor: Diana M Buettner]

Racism Is The Calling Card Behind The Ferguson, MO, Unrest.

Persons of color are the majority in Ferguson, MO. With one black city council member and three black cops in this town it begs the question, Why? [See:Has Liberty Given Way To Gerrymandering?] Then when a white police officer guns down an unarmed black teen who is a suspect in a shoplifting case by putting six rounds in him, one in the head while on the ground, and there are riots in the streets, people have the audacity to ask, Why? Granted, violence and destruction of property is unproductive. But a peaceful gathering of concerned citizens to protest a perceived injustice is the American way in this writer's view. Moreover, the community reaction [outrage]  to this killing of an unarmed youth regardless of the color of his skin is a predictable outcome. Furthermore, with an ever increasing aggressive police force being fashioned from ex-military personnel all across America are, "We The People," being protected or are we seen as  game for the predatory police officer with an ax to grind?

There has been study after study that has shown inexperienced cops fearful of minorities have resorted to use of force. Often, these confrontations are between white police officers and a minority. There is a growing culture of confrontation between police and communities of color, and the problem is only getting worse.

Many experts argue that police forces that represent the community makeup can ease tensions. But the more systemic problem is the political infrastructure that creates and maintains disproportionately composed  police departments. This historical tension is most evident in towns like Ferguson, MO. When you have a population comprised of 67% blacks who have become non-factors in choosing their elected officials, what you get is Ferguson. 

There are innumerable ways a community can become so disproportionately misrepresented.

Ferguson's Mayor is white. Five of the six city councilmen are white. These members are tasked with recruiting, training, and setting parameters as to how the police functions. This white City Hall produced a 95% white police force. This disparity does not equal discrimination or prejudicial policing, but it does create an atmosphere where white elected officials seem insensitive to police brutality in these minority communities. Whatever the reasons for this dysfunction, gerrymandering, voter apathy, etc  its designers have circumvented the political process that would give people in the community the right to have a say in how that community functions. Ferguson, like many small cities, towns, and communities across this country, appear to be in an apartheid state where a small but influential group of people maintain dominion by discouraging electoral participation and creating a police state environment.

With radical-right wing courts allowing unfettered influence peddling in the form of Citizens United and  liberty being replaced by gerrymandering and U.S. Supreme Court regression of the Voting Rights Act of 1965, these factions have recreated a Jim Crow aura around this country. Ferguson is a case study of just what those policies reap. Moving forward, all Americans left or right should seek to ensure the electorate- no matter its makeup - has full participation, and the elected officials are a mirror of the community. If not, it's the view of the House of Public Discourse, "The Ferguson Fail, A Process Run Amuck," will be more and more commonplace.

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