Lawrence O'Donnell and his MSNBC staff discovered and broke the story about the Ferguson grand jury being given the wrong instructions on the law they were told to apply in deciding whether to indict Darren Wilson.
O'Donnell has requested answers, and District Attorney McCulloch's office has finally acknowledged the error.
This is the problem with using a grand jury to "sort of" try the case, instead of just presenting the case for indictment and asking the grand jury to approve it. Given all the conflicting evidence to a group of jurors, allowing the accused to mount a defense, without having rules of testimony, an adversarial process, cross-examinations, and a judge to oversee the fairness of the trial and to make sure that the jurors are properly instructed on the law, then you get results like you've gotten here.
And, though we know less what went on because they aren't releasing the transcript, the case of Eric Garner in Staten Island seems to have been handled in much the same way: all the evidence, multiple witnesses testifying, including the accused officer, no attorneys, no judge -- and the failure to return an indictment in what was an even more open and shut case of, at the least, manslaughter. As far as we know, this jury was not given the wrong law, but they were given only two options for an indictment: murder or manslaughter. The lesser unlawful endangerment was not a choice they had.
If there were a judge in the Ferguson case, s/he would have instructed the jury on the law. If somehow s/he had given them the wrong law, then it should have been declared a mistrial, or at least overturned on appeal. In a grand jury, there is no judge and not even any appeal -- because the purpose is only to decide whether it should be brought to a trial.. Then you have all these elements of a real trial, not the sham cover to let the DA weasel out of his responsibility.
Ralph
Saturday, December 6, 2014
More shocking incompetence -- or bias -- in the Ferguson prosecution
Credit Lawrence O'Donnell for his scoop in reporting this on msnbc's "Last Word With Lawrence O'Donnell" last week, repeated again on his December 1st broadcast.
Although District Attorney Bob McCulloch gave the press conference and revealed the grand jury's decision in the Darren Wilson case, the primary prosecutor conducting the hearing for the grand jury was Assistance District Attorney Kathy Alizadeh.
DA McCulloch's decision to release the full, unedited transcript of the grand jury hearings was ostensibly in the service of transparency, designed to build trust into the process. Unfortunately -- for everyone, including the DA and his assistants -- it did exactly the opposite, because it exposed the truth of the obvious bias on the part of McCulloch and his team.
The transcript reveals, over and over again, that during Officer Darren Wilson's testimony, he is rarely asked any skeptical questions by the assistant district attorney; but, with witnesses whose testimony conflicts with Wilson's, she often bores in and challenges them. That, of course, is on top of the highly unusual step of allowing an accused to testify -- which in effect turned an indictment presentation into a mini-trial WITHOUT a judge, opposing lawyers, or cross-examination of witnesses.
In short, it was a set-up to get an official stamp of non-indictment of the police officer. But that's only background to what O'Donnell revealed on "Last Work." It gets worse.
The more damning question is: Did Assistant DA Kathy Alizadeh deliberately mislead the grand jurors -- or was it a case of colossal incompetence -- that she gave them a printed copy of a 1979 law that had been deemed unconstitutional in 1985 by the United States Supreme Court?
And it was not just any law. It was a law which stated the conditions under which a police officer may use force and may use deadly force. Under that law, Officer Wilson would have been justified in shooting and killing Michael Brown simply because he was a suspect who was fleeing. That is what the grand jurors were told was the law under which they must decide whether to indict Wilson -- and they were given this incorrect law just prior to hearing Wilson's testimony, the crucial time when jurors' opinions began of form.
LET ME BE CLEAR: The grand jurors were given the wrong instructions about what law governed the decision they must make. That error was not corrected for the entire time that they were hearing all the forensic evidence and all the witnesses testify, including the defendent himself.
It was not until the day they were to begin deliberating -- almost 3 months later, on November 21st -- that Alizadeh brought them a new print-out which she said was to replace what she had given them 'a long time ago and which, she said, was not entirely wrong, but there was something in it that wasn't correct; so they should disregard that old copy she had given them.
She did not explain what was different and how that might affect their decision. When one of the jurors asked her to clarify if this meant that the Supreme Court could over-rule a Missouri law, she said "Just don't worry about that." And her colleague chimed in: "We don't want to get into a law class."
This is not hearsay. Anyone can read it in the transcript that McCulloch so proudly released to a skeptical public, hoping to gain their trust in his decision and the process. He failed miserably -- and instead proves again just how clueless he is about the whole bias thing.
Like so many others have done, Lawrence O'Donnell and his staff combed through the transcript with a fine legal knowledge -- and they found this monkey business with the wrong law being given and the less than adequate correction of the error, way too late in the process.
Incompetence? Or bias? We may never know.
Ralph
Although District Attorney Bob McCulloch gave the press conference and revealed the grand jury's decision in the Darren Wilson case, the primary prosecutor conducting the hearing for the grand jury was Assistance District Attorney Kathy Alizadeh.
DA McCulloch's decision to release the full, unedited transcript of the grand jury hearings was ostensibly in the service of transparency, designed to build trust into the process. Unfortunately -- for everyone, including the DA and his assistants -- it did exactly the opposite, because it exposed the truth of the obvious bias on the part of McCulloch and his team.
The transcript reveals, over and over again, that during Officer Darren Wilson's testimony, he is rarely asked any skeptical questions by the assistant district attorney; but, with witnesses whose testimony conflicts with Wilson's, she often bores in and challenges them. That, of course, is on top of the highly unusual step of allowing an accused to testify -- which in effect turned an indictment presentation into a mini-trial WITHOUT a judge, opposing lawyers, or cross-examination of witnesses.
In short, it was a set-up to get an official stamp of non-indictment of the police officer. But that's only background to what O'Donnell revealed on "Last Work." It gets worse.
The more damning question is: Did Assistant DA Kathy Alizadeh deliberately mislead the grand jurors -- or was it a case of colossal incompetence -- that she gave them a printed copy of a 1979 law that had been deemed unconstitutional in 1985 by the United States Supreme Court?
And it was not just any law. It was a law which stated the conditions under which a police officer may use force and may use deadly force. Under that law, Officer Wilson would have been justified in shooting and killing Michael Brown simply because he was a suspect who was fleeing. That is what the grand jurors were told was the law under which they must decide whether to indict Wilson -- and they were given this incorrect law just prior to hearing Wilson's testimony, the crucial time when jurors' opinions began of form.
LET ME BE CLEAR: The grand jurors were given the wrong instructions about what law governed the decision they must make. That error was not corrected for the entire time that they were hearing all the forensic evidence and all the witnesses testify, including the defendent himself.
It was not until the day they were to begin deliberating -- almost 3 months later, on November 21st -- that Alizadeh brought them a new print-out which she said was to replace what she had given them 'a long time ago and which, she said, was not entirely wrong, but there was something in it that wasn't correct; so they should disregard that old copy she had given them.
She did not explain what was different and how that might affect their decision. When one of the jurors asked her to clarify if this meant that the Supreme Court could over-rule a Missouri law, she said "Just don't worry about that." And her colleague chimed in: "We don't want to get into a law class."
This is not hearsay. Anyone can read it in the transcript that McCulloch so proudly released to a skeptical public, hoping to gain their trust in his decision and the process. He failed miserably -- and instead proves again just how clueless he is about the whole bias thing.
Like so many others have done, Lawrence O'Donnell and his staff combed through the transcript with a fine legal knowledge -- and they found this monkey business with the wrong law being given and the less than adequate correction of the error, way too late in the process.
Incompetence? Or bias? We may never know.
Ralph
Friday, December 5, 2014
A proxy war in the Democratic Party
No, the headline is not a typo. I did mean to write that there is a proxy war going on within the Democratic Party between the progressives, led by Sen. Elizabeth Warren and the AFL-CIO labor group; and the business-friendly centrists, led presumably by candidate-to-be Hillary Clinton.
The hope is not that the party becomes polarized, as the Republicans are, but that the progressives can move Clinton to the left. It is essentially a test of the strength of the progressive Democracts.
The current proxy war that is in the news is over Obama's nomination of Antonio Weiss to be Undersecretary of the Treasury for domestic policy.
The objection to Weiss is simply that he is another in a too-long list of economic policy makers and advisers who came from Wall Street and are who bring Wall Street thinking on policies concerning the economy and bank regulation.
There are some good things about Weiss too. He has played a big role in Democratic politics, supported liberal causes. He was also a big donor to Obama -- so that calls everything in question of course.
But the reason I call it a proxy war is that I don't think this is just about who holds this spot for the remaining two years of the Obama presidency. This is about the soul -- or at least the chosen political position -- of Hillary Clinton. Which side of her practical political self will emerge: the centrist, hawkish, business-friendly Hillary? or the progressive fighter for social justice for all?
My heart is with the progressives. My head is with Hillary, because I want to keep a Democratic in the White House. What would be ideal is if Hillary would be both -- and I think she is capable of it. The question is: Will she feel she has to be cautious and not be too much of a populist. The risk is taking the progressive vote for granted and losing their motivation to vote.
Frankly, caution lost the midterms for us. Obama held back; and the candidates he was trying to protect lost anyway. I'd like to see a bold populist campaign that draws us back to the principles that defined the Democratic Party through the civil rights/anti-poverty era.
And I'd like to see it waged -- as she is capable of doing -- by a charged up Hillary Clinton. I think that is her real soul -- but I'm afraid she cares too much about winning, and maybe I do too.
Ralph
The hope is not that the party becomes polarized, as the Republicans are, but that the progressives can move Clinton to the left. It is essentially a test of the strength of the progressive Democracts.
The current proxy war that is in the news is over Obama's nomination of Antonio Weiss to be Undersecretary of the Treasury for domestic policy.
The objection to Weiss is simply that he is another in a too-long list of economic policy makers and advisers who came from Wall Street and are who bring Wall Street thinking on policies concerning the economy and bank regulation.
There are some good things about Weiss too. He has played a big role in Democratic politics, supported liberal causes. He was also a big donor to Obama -- so that calls everything in question of course.
But the reason I call it a proxy war is that I don't think this is just about who holds this spot for the remaining two years of the Obama presidency. This is about the soul -- or at least the chosen political position -- of Hillary Clinton. Which side of her practical political self will emerge: the centrist, hawkish, business-friendly Hillary? or the progressive fighter for social justice for all?
My heart is with the progressives. My head is with Hillary, because I want to keep a Democratic in the White House. What would be ideal is if Hillary would be both -- and I think she is capable of it. The question is: Will she feel she has to be cautious and not be too much of a populist. The risk is taking the progressive vote for granted and losing their motivation to vote.
Frankly, caution lost the midterms for us. Obama held back; and the candidates he was trying to protect lost anyway. I'd like to see a bold populist campaign that draws us back to the principles that defined the Democratic Party through the civil rights/anti-poverty era.
And I'd like to see it waged -- as she is capable of doing -- by a charged up Hillary Clinton. I think that is her real soul -- but I'm afraid she cares too much about winning, and maybe I do too.
Ralph
"Why It's Impossible to Indict a Cop" -- The Nation
I'm trying to take a temporary step back from the outrage over the lack of indictments of police officers in all these unnecessary killings to consider the other side. I know that there is a reason to build in protection for those who put themselves in danger to protect us. Who would become a cop if they were likely to be thrown in jail for doing their job?
Still, the police self-protections are also a screen behind which all kinds of evils can occur -- from blind unconscious racism to blatant incompetence to outright sadism and psychopathic murder.
There has to be some balance, and we do not seem to have found that place. Chase Madar has written a long piece for The Nation on how the system works. He explains, as the title to his article puts it: "Why It's Impossible to Indict a Cop."
"How to police the police is a question as old as civilization . . . . Last year, the FBI tallied 461 “justifiable homicides” committed by law enforcement—justifiable because the Bureau assumes so, and the nation’s courts have not found otherwise. This is the highest number in two decades, even as the nation’s overall homicide rate continues to drop. . . .
"[T]he Missouri Revised Statutes . . . . authorizes deadly force 'in effecting an arrest or in preventing an escape from custody' if the officer 'reasonably believes' it is necessary in order to 'to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.' [Note: Missouri's current statue is consistent with the Supreme Court's jurisprudence, based on 'objective reasonableness.']
" . . . How this reasonableness should be determined was established in a 1989 case, Graham v. Connor: severity of the crime, whether the suspect is resisting or trying to escape and above all, whether the suspect posed an immediate threat to the safety of officers or others. . . . [I]n actual courtroom practice, 'objective reasonableness' has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers. American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.
"The Graham analysis essentially prohibits any second-guessing of the officer’s decision to use deadly force: no hindsight is permitted, and wide latitude is granted to the officer’s account of the situation, even if scientific evidence proves it to be mistaken. . . . [L]egal experts find that 'there is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare,' says Walter Katz, a police oversight lawyer. . . .
"Given the deference and latitude hardwired into the law, “there is just an underlying assumption that the officer did not engage in criminal activity,” says Katz. . . . The reality is, it is extremely difficult to get law enforcement to police itself, and self-regulation is here, just as it is in poultry processing or coal mining, a sick joke.
". . . Police shootings are only one function of living in one of the most heavily policed societies in the world. Any movement to roll back this creeping over-criminalization is going to have to look beyond criminal prosecutions of individual police and take in the big picture. . . .
"Police demilitarization, the decriminalization of working-class people, new policing models: these are all projects that could work in Ferguson and thousands of other American cities. . . . These big-picture reforms are fundamentally political solutions that will require long-term effort, coalition politics that spans race, ethnicity and political affiliation—a challenge, but also a necessity. . . . In the meantime, the constant stream of news reports of unarmed, mostly black and Latino civilians killed by police demands bigger, bolder approaches. They are the only available paths to getting the police under control."
Of course there can be no simple solution to such a complex and historically entrenched culture. But it is discouraging when we are in the midst of what seems a tsunami of white police killing unarmed young black men and boys.
Ralph
Still, the police self-protections are also a screen behind which all kinds of evils can occur -- from blind unconscious racism to blatant incompetence to outright sadism and psychopathic murder.
There has to be some balance, and we do not seem to have found that place. Chase Madar has written a long piece for The Nation on how the system works. He explains, as the title to his article puts it: "Why It's Impossible to Indict a Cop."
"How to police the police is a question as old as civilization . . . . Last year, the FBI tallied 461 “justifiable homicides” committed by law enforcement—justifiable because the Bureau assumes so, and the nation’s courts have not found otherwise. This is the highest number in two decades, even as the nation’s overall homicide rate continues to drop. . . .
"[T]he Missouri Revised Statutes . . . . authorizes deadly force 'in effecting an arrest or in preventing an escape from custody' if the officer 'reasonably believes' it is necessary in order to 'to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.' [Note: Missouri's current statue is consistent with the Supreme Court's jurisprudence, based on 'objective reasonableness.']
" . . . How this reasonableness should be determined was established in a 1989 case, Graham v. Connor: severity of the crime, whether the suspect is resisting or trying to escape and above all, whether the suspect posed an immediate threat to the safety of officers or others. . . . [I]n actual courtroom practice, 'objective reasonableness' has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers. American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.
"The Graham analysis essentially prohibits any second-guessing of the officer’s decision to use deadly force: no hindsight is permitted, and wide latitude is granted to the officer’s account of the situation, even if scientific evidence proves it to be mistaken. . . . [L]egal experts find that 'there is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare,' says Walter Katz, a police oversight lawyer. . . .
"Given the deference and latitude hardwired into the law, “there is just an underlying assumption that the officer did not engage in criminal activity,” says Katz. . . . The reality is, it is extremely difficult to get law enforcement to police itself, and self-regulation is here, just as it is in poultry processing or coal mining, a sick joke.
". . . Police shootings are only one function of living in one of the most heavily policed societies in the world. Any movement to roll back this creeping over-criminalization is going to have to look beyond criminal prosecutions of individual police and take in the big picture. . . .
"Police demilitarization, the decriminalization of working-class people, new policing models: these are all projects that could work in Ferguson and thousands of other American cities. . . . These big-picture reforms are fundamentally political solutions that will require long-term effort, coalition politics that spans race, ethnicity and political affiliation—a challenge, but also a necessity. . . . In the meantime, the constant stream of news reports of unarmed, mostly black and Latino civilians killed by police demands bigger, bolder approaches. They are the only available paths to getting the police under control."
Of course there can be no simple solution to such a complex and historically entrenched culture. But it is discouraging when we are in the midst of what seems a tsunami of white police killing unarmed young black men and boys.
Ralph
Thursday, December 4, 2014
Do police distort the facts to cover up their unjustified shooting of unarmed young black men?
I am not suggesting a conspiracy -- just self-protective cover for police officers trying to do a difficult job. But the solution is not to distort the facts; it should be to recognize the difficulty of going into a situation where your own life may be at risk, and then to find better ways to train officers to respond appropriately.
[NOTE: I wrote this before the announcement of the New York grand jury decision on the "chokehold" killing of Eric Garner by a police officer. We don't yet know the details of their deliberation, but we do know that this grand jury was handled much the same as the Ferguson one -- all the evidence presented to the grand jury, and the police officer was allowed to testify for two hours. We also know that coroner had called it a homicide.]
The latest example of suspected police reports that distort the truth -- slanted in their favor -- involves the recent shooting of 12 year old Tamir Rice by a Cleveland police officer. It's a long description of something that transpired in just a few seconds. Evidence comes from a nearby security surveillance camera that was unknown to the police when they released their report. It reportedly shows that it was only two seconds from the time the police car pulled up until Tamir was shot.
The case led to a stunning piece of reporting by both Chris Hayes on MSNBC and by Shaun King, a blogger on Daily Kos, who begins with this:
Back to Shaun King's blog on the Cleveland case:
This may not be a conspiracy, but it is a nationwide pattern and a serious social problem. Bravo !!! to President Obama and AG Eric Holder for addressing the problem head on. Holder has already begun his series of hearings around the country.
Ralph
PS: Now there is a report that the officer who shot Tamir had been employed as a policeman in another city, where two years ago a report described him as unfit to be a police officer and that it was unlikely that he would ever be. Following that evaluation, he resigned. Whether the Cleveland police department knew of this when they hired him, I do not know.
[NOTE: I wrote this before the announcement of the New York grand jury decision on the "chokehold" killing of Eric Garner by a police officer. We don't yet know the details of their deliberation, but we do know that this grand jury was handled much the same as the Ferguson one -- all the evidence presented to the grand jury, and the police officer was allowed to testify for two hours. We also know that coroner had called it a homicide.]
The latest example of suspected police reports that distort the truth -- slanted in their favor -- involves the recent shooting of 12 year old Tamir Rice by a Cleveland police officer. It's a long description of something that transpired in just a few seconds. Evidence comes from a nearby security surveillance camera that was unknown to the police when they released their report. It reportedly shows that it was only two seconds from the time the police car pulled up until Tamir was shot.
The case led to a stunning piece of reporting by both Chris Hayes on MSNBC and by Shaun King, a blogger on Daily Kos, who begins with this:
"The equation is increasingly predictable. An African American is killed by police. Controlling the narrative, police release their version of events and state that they had no other alternative but to use lethal force.This pattern is repeated over and over, hundreds of times. Perhaps the most documented one is the transcript of the recent grand jury hearings on the Michael Brown killing that had such glaring errors (more about this in another blog).
"Eyewitnesses, recordings, and indisputable facts counter the police narrative and expose glaring inconsistencies in their story. . . . The officers are not punished for what they did. The family and community are left in a state of grief—fueled by a lack of closure or justice."
Back to Shaun King's blog on the Cleveland case:
". . . Tamir Rice, a 12-year-old boy who was shot and killed by Cleveland police is the newest name we must add to the list. Seen on a local security camera loafing around a community park, alone, Tamir makes snowballs, walks around, and plays with a pellet gun.This is very disturbing -- and I have not even included the parts of the secondary issue of the pattern as desceribed by Shaun King: the character assassination of the victim and his family that begins, sometimes with comments from the police themselves, and then amplified by the media ad infinitum. It happened with Trayvon Martin and the release of his school disciplinary record, with Michael Brown and his stealing cigarillos -- and worse with other shooting victims. Tamir's parents' difficulties are already being bandied about in the media, as if to say: of course this is all the fault of victim, so what can you expect the police to do?
"Concerned, a man calls 911 to report Tamir. The call itself was actually very thorough and reported that Tamir appeared to be a young kid and that the gun he was flashing was likely fake. . . . the caller appears to have very legitimately described what he saw—including Tamir's young age and the likelihood that the pistol was not real. These facts, tragically, were left out when the police dispatch operator radioed the call into local officers. . . .
"Given what they were given, the police should've replied to the dispatch with extreme caution. They had no idea if Tamir was 12 or 21 or if he had an air pistol from Walmart or a loaded 9 mm. The police responded to the call . . . and shot him. He died hours later at a local Cleveland hospital."
"Not knowing that a camera recorded the entire incident, the police told what appear to be at least five lies about what happened.
1. Police said that Tamir Rice was seated at a table with other people.
2. Police said that as they pulled up, they saw Tamir Rice grab the gun and put it in his waistband.
3. Police said they got out of the car and told Tamir Rice three times to put his hands up but he refused.
4. Police said that Tamir Rice then reached into his waistband and pulled out the gun, and was then shot and killed by Officer Timothy Loehmann.
5. Timothy Loehmann was described as a rookie.
"MSNBC's Chris Hayes very adeptly narrates us through the video of the shooting to show us that these five essential points aren't true at all. [I saw Chris' show referred to here and saw the video].
1. Tamir Rice was not seated at a table with other people.
2. Tamir Rice does not appear to grab the gun and put it in his waistband.
3. Police shot and killed Tamir in less than two seconds and could not have told him to put his hands up three times.
4. Tamir Rice absolutely does not pull the air gun out of his waistband and brandish it in any way. This fact is so crucial.
5. Timothy Loehmann was not a rookie, but had been an officer for over two years.
". . . As expected . . . spokespeople are already claiming that the officer had no other choice. But how can that be true? Virtually every other choice the officer could've made would have been better than the one he chose. Why did the officer lie and say Tamir was with a crew of people? Why did the officer lie and say Tamir brandished the weapon? Why did the officers pull up so closely to Tamir? How are we expected to believe that he was told three times to put his hands up in such a short period of time? [two seconds] This never should've happened."
This may not be a conspiracy, but it is a nationwide pattern and a serious social problem. Bravo !!! to President Obama and AG Eric Holder for addressing the problem head on. Holder has already begun his series of hearings around the country.
Ralph
PS: Now there is a report that the officer who shot Tamir had been employed as a policeman in another city, where two years ago a report described him as unfit to be a police officer and that it was unlikely that he would ever be. Following that evaluation, he resigned. Whether the Cleveland police department knew of this when they hired him, I do not know.
Conservatives and progressives alike are shocked, outraged at the lack of indictment of Garner's killer
Finally, liberals and conservatives agree that the lack of an indictment of the police officer whose chokehold resulted in the death of Eric Garner is outrageous.
Liberal Rep. Hakeem Jeffries (D-NY) said: "The decision by a grand jury not to indict in the death of Eric Garner is a miscarriage of justice, it's an outrage, it's a disgrace, it's a blow to our democracy and it should shock the conscience of every single American who cares about justice and fair play. . . . What more does America need to see to understand that we've got a problem in this country as it relates to the relationship between the police and communities of color?"
At the other end of the spectrum, Fox News senior judicial analyst, Judge Andrew Napolitano said he was shocked by the decision. He described Garner's death as "criminally negligent homicide. . . . This is not somebody wrestling for your gun, this is not where you shoot or be shot at. This is choking to death a mentally impaired, grossly obese person whose only crime was selling cigarettes without collecting taxes on them. This does not call for deadly force by any stretch of the imagination." (It was not clear why Napolitano described Garner as "mentally impaired.")
And from an article by Sean Davis on the website, The Federalist, a conservative blog: "The grand jury’s decision not to bring any charges against the officer who killed Garner is inexplicable. It defies reason. It makes no sense. Unlike the Michael Brown case, we don’t have to rely on shaky and unreliable testimony . . . . All we have to do is watch the video and believe our own eyes. . . .
"[T]he police officer who killed Garner certainly appears to be guilty of second degree manslaughter at the very least . . . . [which] requires only two factors: 1) the person charged must have caused the death of the victim, and 2) the perpetrator must have caused the death of the victim via reckless means. . . .
"As the video shows, the officer clearly caused the death of Eric Garner, who was alive until the officer put him in a chokehold, a move which is banned by the NYPD for good reason [it was banned in 1993 because of "deaths of suspects here and around the nation"] . . . .
"I have to stress that the entire incident was caught on tape. The evidence is unequivocal. And yet, no indictment. Why, it’s almost as if the grand jury system is just a convenient means for prosecutors to get the outcome they want wrapped in a veneer of due process."
Even Bill O'Reilly said that Garner "didn't deserve that."
Enough? Yes, but see the upcoming blog on "Why It's Impossible to Indict a Cop."
Ralph
Liberal Rep. Hakeem Jeffries (D-NY) said: "The decision by a grand jury not to indict in the death of Eric Garner is a miscarriage of justice, it's an outrage, it's a disgrace, it's a blow to our democracy and it should shock the conscience of every single American who cares about justice and fair play. . . . What more does America need to see to understand that we've got a problem in this country as it relates to the relationship between the police and communities of color?"
At the other end of the spectrum, Fox News senior judicial analyst, Judge Andrew Napolitano said he was shocked by the decision. He described Garner's death as "criminally negligent homicide. . . . This is not somebody wrestling for your gun, this is not where you shoot or be shot at. This is choking to death a mentally impaired, grossly obese person whose only crime was selling cigarettes without collecting taxes on them. This does not call for deadly force by any stretch of the imagination." (It was not clear why Napolitano described Garner as "mentally impaired.")
And from an article by Sean Davis on the website, The Federalist, a conservative blog: "The grand jury’s decision not to bring any charges against the officer who killed Garner is inexplicable. It defies reason. It makes no sense. Unlike the Michael Brown case, we don’t have to rely on shaky and unreliable testimony . . . . All we have to do is watch the video and believe our own eyes. . . .
"[T]he police officer who killed Garner certainly appears to be guilty of second degree manslaughter at the very least . . . . [which] requires only two factors: 1) the person charged must have caused the death of the victim, and 2) the perpetrator must have caused the death of the victim via reckless means. . . .
"As the video shows, the officer clearly caused the death of Eric Garner, who was alive until the officer put him in a chokehold, a move which is banned by the NYPD for good reason [it was banned in 1993 because of "deaths of suspects here and around the nation"] . . . .
"I have to stress that the entire incident was caught on tape. The evidence is unequivocal. And yet, no indictment. Why, it’s almost as if the grand jury system is just a convenient means for prosecutors to get the outcome they want wrapped in a veneer of due process."
Even Bill O'Reilly said that Garner "didn't deserve that."
Enough? Yes, but see the upcoming blog on "Why It's Impossible to Indict a Cop."
Ralph
Wednesday, December 3, 2014
Obama's AG nominee was the prosecuor in the most notorious New York police brutality case
Loretta Lynch, nominated by President Obama to replace Attorney General Eric Holder and currently awaiting her confirmation hearings, was the prosecutor in the infamous 1997 case of police brutality against a Haitian immigrant Abner Louima. She prosecuted the federal case against the police officer, who was convicted and is still in jail on a 17 year sentence.
Coming at this time, her hearings are likely to be dominated by this issue and what the Department of Justice can and should do about this national crisis of trust between law enforcement and minority, especially black, citizens.
If confirmed, she would continue both the federal investigation into the death of Eric Garner and the national initiative just begun by Holder at the behest of the president to improve relations and trust between law enforcement and the black community.
There is every indication that she is up to the task, having already expressed her position on "the pain of broken trust" between the two groups:
If the very white Republicans try to use this confirmation to take another partisan slap at the president, then I think we could make a good case for racism in denying our first black president the right to have the first black woman Attorney General to spearhead improving trust between (mostly) white law enforcement and black citizens. Even if their motive is not racial but just pure political spite, public opinion is going to draw that conclusion. So they should think about that if they want to show that they can govern responsibly and have any hope of winning in 2016.
Ralph
Coming at this time, her hearings are likely to be dominated by this issue and what the Department of Justice can and should do about this national crisis of trust between law enforcement and minority, especially black, citizens.
If confirmed, she would continue both the federal investigation into the death of Eric Garner and the national initiative just begun by Holder at the behest of the president to improve relations and trust between law enforcement and the black community.
There is every indication that she is up to the task, having already expressed her position on "the pain of broken trust" between the two groups:
"Frankly, the onus is on law enforcement because we are the ones who have taken an oath to protect and to serve the people . . . And we are the ones who have the ability to change from within."Sounds like the president has made a good choice, in addition to the fact that she would be the first African-American woman to be Attorney General.
If the very white Republicans try to use this confirmation to take another partisan slap at the president, then I think we could make a good case for racism in denying our first black president the right to have the first black woman Attorney General to spearhead improving trust between (mostly) white law enforcement and black citizens. Even if their motive is not racial but just pure political spite, public opinion is going to draw that conclusion. So they should think about that if they want to show that they can govern responsibly and have any hope of winning in 2016.
Ralph
NEWS FLASH: Another grand jury declines to indict a white police officer in the klling of a black man
This is a breaking story as of 4:00 pm on Wednesday:
From Huffington Post web site:
This only ads fuel to the fires that burned in Ferguson. Responsible activists are desperately trying to hold the protests to non-violence. It's going to become harder each time another unjustified killing results in no accountability.
I'd say we have a national crisis.
Ralph
From Huffington Post web site:
A grand jury voted Wednesday not to indict New York City police officer Daniel Pantaleo in the death of Eric Garner, mujltiple sources confirm.
Pantaleo put 47-year-old Garner into a chokehold during an arrest for selling untaxed cigarettes on July 17. In a viral video of the arrest, Garner can be seen screaming “I can’t breathe!” multiple times until his body goes limp. A medical examiner later ruled his death a homicide.
Chokeholds are banned by NYPD guidelines, and Garner’s death prompted large protests across the city.
The grand jury’s decision Wednedsay comes just over a week after a grand jury in Ferguson, Missouri, declined to indict officer Darren Wilson in the shooting death of Michael Brown.
This only ads fuel to the fires that burned in Ferguson. Responsible activists are desperately trying to hold the protests to non-violence. It's going to become harder each time another unjustified killing results in no accountability.
I'd say we have a national crisis.
Ralph
The enemny of my enemy is . . . my friend ? ?
It's said that politics makes strange bedfellows. That's sort of akin to the saying that the enemy of my enemy is my friend. Well, sometimes.
The Sunni extremists who have established the Islamic State -- or ISIS aka ISIL -- in Iraq are being bombed by fighter jets from the U.S., from France, from the U. K., from Canada and . . . and from Iran.
News sources say that the U. S. is aware that Iranian bombers are operating in the same area as the U.S. and its allies are . . . but whether there is any official cooperation is not publically known.
Still, when we are both fighting the same bad guys, doesn't that make us something a little other than enemies? At the least, it might help in the final negotiations over the Iranian nuclear program.
It will be interesting to watch this latest chapter in U.S.-Iran relations. Remember, we started the enmity in 1953 when our CIA and the British M16 orchestrated the over-throw of their first democratically-elected Prime Minister Mohammad Mosaddegh.
Western oil interests simply couldn't abide the socialist government that nationalized their oil industry, so we helped get rid of their government and reinstalled the Shah. We'd be pretty mad too, if the Iranian ayatollahs had their secret service orchestrate a take-over in Washington and put Donald Trump in charge, wouldn't we?
Remember that, when we paint them as the bad guys. I'm not saying they have not done bad things, and I don't like the repressive theocracy that they have now. But neither do I like a lot of things that we have been done to other countries. Iran is only one.
Ralph
The Sunni extremists who have established the Islamic State -- or ISIS aka ISIL -- in Iraq are being bombed by fighter jets from the U.S., from France, from the U. K., from Canada and . . . and from Iran.
News sources say that the U. S. is aware that Iranian bombers are operating in the same area as the U.S. and its allies are . . . but whether there is any official cooperation is not publically known.
Still, when we are both fighting the same bad guys, doesn't that make us something a little other than enemies? At the least, it might help in the final negotiations over the Iranian nuclear program.
It will be interesting to watch this latest chapter in U.S.-Iran relations. Remember, we started the enmity in 1953 when our CIA and the British M16 orchestrated the over-throw of their first democratically-elected Prime Minister Mohammad Mosaddegh.
Western oil interests simply couldn't abide the socialist government that nationalized their oil industry, so we helped get rid of their government and reinstalled the Shah. We'd be pretty mad too, if the Iranian ayatollahs had their secret service orchestrate a take-over in Washington and put Donald Trump in charge, wouldn't we?
Remember that, when we paint them as the bad guys. I'm not saying they have not done bad things, and I don't like the repressive theocracy that they have now. But neither do I like a lot of things that we have been done to other countries. Iran is only one.
Ralph
Tuesday, December 2, 2014
The Supreme Court balance
Supreme Court Justice Ruth Bader Ginsburg is one tough cookie. At 81, she works out regularly with a trainer at a gym, doing elipticals and weights. She has survived both colorectal and pancreatic cancers. And just last week, she was briefly hospitalized to have one of her coronary arteries propped open with a stent.
She was back at her desk at the court on Monday.
The current balance of SCOTUS is 5 conservatives and 4 liberals, with conservative Anthony Kennedy the sometimes swing vote. But, considering my blog yesterday about the near vanishing chances that a Republican can win the presidency in 2016, it looks like a good bet that we will have a Democrat in the White House for the next 10 years (2 more for Obama, then 8 for Clinton).
So, by the end of that second Clinton term, Ginsburg will be 91. Scalia and Kennedy will both be 88 and Breyer will by 86.
Let's be realistically optimistic: much better than a 50/50 chance that a Democratic president will replace at least two of those four -- and perhaps a 50/50 chance that the senate will shift back to Democratic control (easier confirmations). So it seems a safe bet that we can expect a shift -- at a minimum -- to a 5-4 liberal advantage. And it could be better than that.
Don't count unhatched chickens, of course. If a Republican beats Hillary (perish the thought), then it could go the other way to a solid 6-3 conservative balance. But . . . our dark days may be short-lived.
Ralph
She was back at her desk at the court on Monday.
The current balance of SCOTUS is 5 conservatives and 4 liberals, with conservative Anthony Kennedy the sometimes swing vote. But, considering my blog yesterday about the near vanishing chances that a Republican can win the presidency in 2016, it looks like a good bet that we will have a Democrat in the White House for the next 10 years (2 more for Obama, then 8 for Clinton).
So, by the end of that second Clinton term, Ginsburg will be 91. Scalia and Kennedy will both be 88 and Breyer will by 86.
Let's be realistically optimistic: much better than a 50/50 chance that a Democratic president will replace at least two of those four -- and perhaps a 50/50 chance that the senate will shift back to Democratic control (easier confirmations). So it seems a safe bet that we can expect a shift -- at a minimum -- to a 5-4 liberal advantage. And it could be better than that.
Don't count unhatched chickens, of course. If a Republican beats Hillary (perish the thought), then it could go the other way to a solid 6-3 conservative balance. But . . . our dark days may be short-lived.
Ralph
Monday, December 1, 2014
GOP strategist talks "bad news for Republicans"
A Republican strategist, who writes a column in the Houston Chronicle, had rather dire predictions for his party, despite the seeming big win in the mid-term election. Chris Ladd, said ". . . no GOP candidate on the
horizon has a chance at the White House in 2016 and the chance of
holding the Senate beyond 2016 is vanishingly small.."
In a presidential contest, according to Ladd, Democrats would easily win what he calls "the Blue Wall" of all New England, the Upper Midwest and West Coast states for a total of 257 electoral votes out ot the 270 needed to win. Simply by adding Virginia, Democrats would get the magic number of 270. They could win without taking Ohio, Florida, Iowa, Colorado, Georgia, or North Carolina.
For a Republican candidate to win would require winning all the Red Wall and all nine tossup states, plus one solidly blue state.
In addition, every major Democratic state ballot initiative won, including minimum wage -- even in red states; and every "personhood" amendment lost.
In the 2016 election, GOP senate candidates will face an even tougher numbers game than Democrats did in 2014. They will have to defend 24 seats, with at least 18 of them competitive, while Democrats will have only one likely controversial seat to defend. So chances look very good for retaking the senate in 2016.
Ladd closes his essay saying: “It is almost too late for Republicans to participate in shaping the next wave of our economic and political transformation. The opportunities we inherited coming out of the Reagan Era are blinking out of existence one by one while we chase so-called “issues” so stupid, so blindingly disconnected from our emerging needs that our grandchildren will look back on our performance in much the same way that we see the failures of the generation that fought desegregation. Something, some force, some gathering of sane, rational, authentically concerned human beings generally at peace with reality must emerge in the next four to six years from the right, or our opportunity will be lost for a long generation. Needless to say, Greg Abbott and Jodi Ernst are not that force. ‘Winning’ this election did not help that force emerge.”
Is this not cause for Democratic optimism, with views like this coming from inside Republican strategist circles?
Ralph
In a presidential contest, according to Ladd, Democrats would easily win what he calls "the Blue Wall" of all New England, the Upper Midwest and West Coast states for a total of 257 electoral votes out ot the 270 needed to win. Simply by adding Virginia, Democrats would get the magic number of 270. They could win without taking Ohio, Florida, Iowa, Colorado, Georgia, or North Carolina.
For a Republican candidate to win would require winning all the Red Wall and all nine tossup states, plus one solidly blue state.
In addition, every major Democratic state ballot initiative won, including minimum wage -- even in red states; and every "personhood" amendment lost.
In the 2016 election, GOP senate candidates will face an even tougher numbers game than Democrats did in 2014. They will have to defend 24 seats, with at least 18 of them competitive, while Democrats will have only one likely controversial seat to defend. So chances look very good for retaking the senate in 2016.
Ladd closes his essay saying: “It is almost too late for Republicans to participate in shaping the next wave of our economic and political transformation. The opportunities we inherited coming out of the Reagan Era are blinking out of existence one by one while we chase so-called “issues” so stupid, so blindingly disconnected from our emerging needs that our grandchildren will look back on our performance in much the same way that we see the failures of the generation that fought desegregation. Something, some force, some gathering of sane, rational, authentically concerned human beings generally at peace with reality must emerge in the next four to six years from the right, or our opportunity will be lost for a long generation. Needless to say, Greg Abbott and Jodi Ernst are not that force. ‘Winning’ this election did not help that force emerge.”
Is this not cause for Democratic optimism, with views like this coming from inside Republican strategist circles?
Ralph
Sunday, November 30, 2014
Ferguson prosecutor vs Justice Scalia on function of grand jury
Many words have been written about the manipulative way Prosecutor Bob McCulloch used the Ferguson grand jury to conduct a one-sided "mini-trial" of Darren Wilson -- introducing "all" the evidence and five options for the grand jury, without recommending one.
Then allowing the defendent (Wilson) to testify for four hours -- without cross-examination in a friendly, non-adversarial process that almost certainly pre-determined the lack of an indictment. And note that Wilson had three months since the shooting to hear all the evidence that his fellow police have accumulated, and plenty of legal advice in constructing his story to fit the evidence. I repeat -- without cross-examination.
To many legal minds and other observers, this was a miscarriage of justice -- and not how the grand jury is meant to be used.
Supreme Court Justice Antonin Scalia wrote the majority opinion in a 1992 case, United States v. John H. Williams, Jr., that addresses the function of the grand jury.
He wrote at some length to disagree with the lower court finding that: "'Judicial supervision . . . facilitates . . . the grand jury's performance of its twin historical responsibilities, i.e., bringing to trial those who may be justly accused and shielding the innocent from unfounded accusation and prosecution.' . . . We do not agree. . . . To the contrary, requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury's historical role, transforming it from an accusatory to an adjudicatory body.
"It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. . . . That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side. As Blackstone described . . . 'the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined.' [citation omitted]. . . .
"So also in the United States. According to the description of an early American court, three years before the Fifth Amendment was ratified, it is the grand jury's function not 'to enquire . . . 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. [citation omitted]. As a consequence, 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."
As far as this grand jury is concerned, there is nothing that can be done. They made a decision not to indict, and that is final. Since the prosecutor himself obviously does not want to prosecute, that also makes this process final.
However, this whole process could be considered in a wrongful death civil lawsuit brought by the family or in the Department of Justice investigation into whether there is racial bias or if civil rights were violated in the handling of this case.
Ralph
Then allowing the defendent (Wilson) to testify for four hours -- without cross-examination in a friendly, non-adversarial process that almost certainly pre-determined the lack of an indictment. And note that Wilson had three months since the shooting to hear all the evidence that his fellow police have accumulated, and plenty of legal advice in constructing his story to fit the evidence. I repeat -- without cross-examination.
To many legal minds and other observers, this was a miscarriage of justice -- and not how the grand jury is meant to be used.
Supreme Court Justice Antonin Scalia wrote the majority opinion in a 1992 case, United States v. John H. Williams, Jr., that addresses the function of the grand jury.
He wrote at some length to disagree with the lower court finding that: "'Judicial supervision . . . facilitates . . . the grand jury's performance of its twin historical responsibilities, i.e., bringing to trial those who may be justly accused and shielding the innocent from unfounded accusation and prosecution.' . . . We do not agree. . . . To the contrary, requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury's historical role, transforming it from an accusatory to an adjudicatory body.
"It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. . . . That has always been so; and to make the assessment it has always been thought sufficient to hear only the prosecutor's side. As Blackstone described . . . 'the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined.' [citation omitted]. . . .
"So also in the United States. According to the description of an early American court, three years before the Fifth Amendment was ratified, it is the grand jury's function not 'to enquire . . . 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. [citation omitted]. As a consequence, 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."
As far as this grand jury is concerned, there is nothing that can be done. They made a decision not to indict, and that is final. Since the prosecutor himself obviously does not want to prosecute, that also makes this process final.
However, this whole process could be considered in a wrongful death civil lawsuit brought by the family or in the Department of Justice investigation into whether there is racial bias or if civil rights were violated in the handling of this case.
Ralph
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