Sunday, November 30, 2014

The Fegusson Discision

Ezra Klein says Officer Darren Wilson's story is unbelievable. Literally. "I mean that in the literal sense of the term: 'difficult or impossible to believe.' But I want to be clear here. I'm not saying Wilson is lying. I'm not saying his testimony is false. I am saying that the events, as he describes them, are simply bizarre. His story is difficult to believe."

So Brown is punching inside the car. Wilson is scrambling to deflect the blows, to protect his face, to regain control of the situation. And then Brown stops, turns to his left, says to his friend, "Here, hold these," and hands him the cigarillos stolen from Ferguson Market. Then he turns back to Wilson and, with his left hand now freed from holding the contraband goods, throws a haymaker at Wilson.

Every bullshit detector in me went off when I read that passage. Which doesn't mean that it didn't happen exactly the way Wilson describes. But it is, again, hard to imagine. Brown, an 18-year-old kid holding stolen goods, decides to attack a cop and, while attacking him, stops, hands his stolen goods to his friend, and then returns to the beatdown. It reads less like something a human would do and more like a moment meant to connect Brown to the robbery.

Later Klein wrote about What Dorian Johnson Saw.

While the officer is grabbing ahold of Big Mike, he kind loses grip around his neck, that's how I knew he had a good grip. He never fully let Big Mike go, now he has a good grasp on his shirt. So now Big Mike's able to turn different angles while he is trying to pull away. And at a point he turned, now we are face-to-face, and he put his hands like, grab these, Bro. And in shock, I'm so not unconsciously, my hands open to where he could put the rillos in my hand.

So Johnson and Wilson agree: there is a moment when Brown turns to Johnson and hands over the stolen cigarillos. But Wilson tells it as Brown freeing his hands to more effectively pummel Wilson, and Johnson tells it as Brown freeing his hands to better escape Wilson.

He ends with, "Indeed, we might never get to the truth of what happened in those two minutes on August. But the point of a trial would have been to get us closer. We would have found out if everything we thought we knew about Brown was wrong, or if Wilson's story was flawed in important ways, or if key witnesses completely broke under pressure. We would have heard real cross-examination. We would have seen the strongest case that could be mounted by both the prosecution and the defense. But now we're not going to get that chance. We're just left with these Rashomon-like testimonies, a dead 18-year-old, and a shattered family."

The Atlantic shows The Photos of Darren Wilson's Injury. "I felt another one of those punches in my face would knock me out or worse. I mean, it was, he's obviously bigger than I was, and stronger, and the—I've already taken two to the face, and I don't think I would—the third one could be fatal if he hit me right."


Dara Lind at Vox says Prosecutors grossly mishandled the Darren Wilson investigation "The fundamental problem with the Wilson grand jury investigation was that jurors were given far more evidence than is typical and asked to do far more with it. That makes it easy for the prosecutor's office to deflect accusations of misconduct: they were just giving the grand jury all the facts. And while a good grand jury investigation could have given grand jurors all the facts, it wouldn't have done it in the way St. Louis County prosecutor Robert McCulloch's team did." Later she wrote a nice summary, Darren Wilson's grand jury: too much evidence, too little supervision.

A prominent legal expert eviscerates the Darren Wilson prosecution, in 8 tweets . Eviscerates is a bit much, but she makes good points like "Key to cross-exam would be requiring Wilson to explain how Brown's allegedly taking one step toward Wilson is "charging" him."

Eric Citron writes in SCOTUSblog, this was Not your typical grand jury investigation. "What’s missing from this discussion – and the rest of the coverage I’ve seen – is that this grand jury result may have been different from almost any other because the process was unlike almost any other. And that’s because of a contentious Supreme Court decision from two decades ago."

"The question in United States v. Williams was whether it is prosecutorial misconduct, requiring the dismissal of an indictment, for the prosecutor to withhold from the grand jury “substantial exculpatory evidence” in his possession that might lead the grand jury to reject the indictment. The Supreme Court said no. Justice Scalia, joined by four other Justices, held that the Constitution does not require exculpatory evidence to be disclosed, even when it is directly contrary to the prosecutor’s theory of guilt. That is partly because the grand jury’s role is not to determine guilt or innocence, but rather to decide whether there is enough evidence of a crime that a conviction is possible."

"What does this mean? It means that when a prosecutor really wants an indictment, you would not expect the grand jury process to look anything like what happened in Darren Wilson’s case. The prosecutor would have no obligation to put forward the conflicting eyewitness testimony, or introduce pictures of Officer Wilson’s injuries – although grand jury members could ask for them if they somehow knew they existed. Instead, the prosecutor could put forward only the first few witnesses corroborating his own theory, along with the evidence that Wilson fired ten shots from a substantial distance away."

Dahlia Lithwick and Sonja West say Prosecutors in Ferguson violated our right to an open criminal justice system. "This right of open trials belongs not just to the accused but to all of us. It is, the Supreme Court said in the 1986 case Press Enterprise v. Superior Court, “a shared right of the accused and the public, the common concern being the assurance of fairness.” And while those accused of crimes have a constitutional right to a “speedy and open trial,” they do not, the court has said, have a right to a private trial."

My sense is that there should have been an indictment. There's clearly enough inconsistencies to give probable cause (a very low standard) and warrant a trial. My guess is the trial would probably find Wilson innocent as there probably isn't enough evidence to convict beyond a reasonable doubt (a higher standard). The prosecutor probably didn't want to indict a cop which I'm guessing in many cases could be a career limiting move. I also would like to see more cameras on police cars and officers to provide more evidence in future cases.

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