Random Ferguson Detritus

Mr Schraub has some silly things to say on the topic, some remarks on that include (below the fold ’cause it’s long):

  1. He starts by suggesting gnostic secrets held only by lawyers are at play here, that those without law degrees should not comment on legal decisions.  But he only says this to contradict it. But what is unstated is why lay-legal people (non-lawyers) they don’t have points (when pointing at actual lawyers remarks contra, say the cited ACA) is unstated.
  2. Then he cites bad statistics and manages to forget the obvious conclusion. Apparently he cites a “538” post on grand jury non-indictments, which is alas self-contradictory. In the US apparently 162k grand juries (! (at what cost?)) cases failed to indicted only 11  times. Yet in just Dallas between 2008 and 2012, we are told 80 times police officers were not indicted in shootings. Uhm, so … in the US there were only 11 non-indictments but 81 in one city in a span of four years. Something stinks in that data, here’s a clue. Dallas is in the US. The article goes on to note that with police shootings three things might be at play: jurors might be less willing to indict police officers, prosecutors who work with police might unconsciously work less hard to convict, and finally in high profile cases driven not by evidence by by politics there may be an absence of evidence to convict. This third alternative, which is certainly happened here, skips past Mr Schraub’s radar, oddly enough.
  3. Mr Schraub is troubled that ” Functionally speaking, a non-indictment decision suggests that the grand jury thought it was implausible that Darren Wilson was guilty.” What he skips past is that they examined all the evidence and that is how they concluded. Mr Schraub is about to  going to be skipping to racial prejudices (about police) it is worth noting that the jury had 3 Black individuals and 5 women.  He thinks “Whether or not we are sure to a “moral certainty” that Wilson is guilty, it seems difficult to be so confident at this stage that he is not guilty that we can justly neglect to look into it further.” Uhm. They looked at an incredible amount of evidence. Apparently they didn’t need to look further. He, with a lawyer’s magical thinking, figures that looking at the evidence isn’t enough. Apparently, you have to keep looking until you see the answer you expected before you started.
  4. And the dog barked in the night, or in the blog post anyhow. What, one lowly law-ignorant individual might ask the gnosis filled lawyer type, what Missouri law would a prosecutor accuse Mr Wilson of breaking and what would be required to prove (in a court) beyond reasonable doubt occurred? Might it be that the Grand Jury decided that such proof was not possible given the evidence so no point in wasting even more money on a trial? But that dog never showed up to bark in Mr Schraub’s deliberations.
  5. Then he gets to more pretend thinking, he offers, “This is such a difficult concept to grasp for White people, for whom it is not even a luxury but bedrock that if something scary happens to you, you call the police and they’ll protect you”. Uhm. Hello. Remember your friendly neighborhood President and his quote on the reliance of those stupid conservatives on “guns, god and whatnot”. Why do you figure “guns” is in the equation. Because those “White people” don’t actually depend all the time on the police like you pretend they do. They have guns in their houses and apply for concealed carry exactly because they fail to trust the police to the extent he pretends.
  6. ” I don’t want to overstate things — there are plenty of people for whom the Darren Wilson decision is proof that the thug kid got what he deserved — but I think even for some Whites out there ambivalent about this precise legal question,” Whatever. Look, figuring it was reasonable to not indict the police officer is not actually the same as saying “the kid got what he deserved”. It’s more about not making a second mistake to compound a tragedy. Seeing as Mr Schraub tacitly wishes for a miscarriage of justice so that he’d get Mr Wilson indicted and convicted his desire to avoid tragedy is misplaced.

Seems to me the liberal mindset is that if a grand jury spends a month going over hundreds of hours of testimony and finds nothing, that’s wrong. Irrespective of the testimony they should go back and keep pounding the testimony until the jury returns the result that the liberal establishment feels would best serve the community. Forget what happened, this should be about what we want to have happened so our narratives all work together. 1984, and all that. It’s not about what it true. It’s about what is needed. Guess that’s what a law degree gets you, a highly plastic ability to look at evidence.

It’s a strange world where liberals on one side of their mouth complain bitterly about inner city violence and that it should be curbed, yet at the same time rail against attempts to do exactly that. My decidedly faulty crystal ball predicts you won’t make any headway fixing inner city violence until you’ve fixed inner city family and marriage folkways.

Question for the economist, apparently the police in the last riots spent considerable efforts protecting the rioters against reprisals and defense of property by the ravaged-store owners. What incentives are at play here, why should we not expect more riots in the future? Riot, not for protest, merely for fun and profit. If there is little risk and gain to be had, why won’t there be more? On the other hand, jobs and commodity prices are higher in high crime areas. That price however is often blamed on (erroneously) on racism, not crime.

Silly things are done all over however, e.g., this. Our President, being the student of history, will tell us however that “this is understandable.” (see Albion’s Seed, Western Folkway). Understandable doesn’t make it a good idea.

A question by us non gnostic non-lawyers, here.

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9 comments

  1. Boonton says:

    #2, there is nothing wrong with the statistics:

    According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them…Wilson’s case was heard in state court, not federal, so the numbers aren’t directly comparable

    On the state level grand juries automatically review cop shootings. Since that rarely happens on the Federal level, it is not inconsistent for there to be just 11 cases of no indictment on the Federal level while at the same time almost all police shootings are not indicted on the state level. What is relevant here is that the prosecutor almost always controls the indictment. While the grand jury has the right to refuse to indict, in practice grand juries are almost always lead by the prosecutor and will take direction from him.

    This makes your #3 point faulty. Unlike an actual trial, grand juries do not really judge the evidence but judge whether the prosecutor has a case. Since prosecutors decide what and how to present the evidence to the jury, we cannot say a grand jury decision means anything in relation to the evidence.

    In the US apparently 162k grand juries (! (at what cost?)) cases failed to indicted only 11 times…

    I would say the cost here is a bit deceptive. Think of bounced checks at a bank. “Out of 1,000 checks presented today, only 5 bounced!” Does that mean it is a waste of time for the bank to check the accounts for available funds? Of course not, if word got out that the bank would cash checks without checking the balances people would start writing a lot of bad checks to rip the bank off.

    There’s no excuse for a prosecutor failing to secure an indictment just as there’s no excuse for you to bounce a check with your bank. The purpose of the grand jury is to act as a check to require that the prosecutor has at least a half-assed case. The actual judging of the case, though, happens at trial, not indictment.

    This raises the issue of what exactly is the purpose of having grand juries ‘investigate’ police shootings? Since the grand jury system is designed to only detect blatent failure on the part of prosecutors and not a true investigational body, then it seems to have no real purpose. Police misconduct will never be indicted unless the prosecutor wants it to be indicted.

    Seems to me the liberal mindset is that if a grand jury spends a month going over hundreds of hours of testimony and finds nothing, that’s wrong. …

    Again it is wrong to come to this conclusion. The jury may have spent months being hit with hundreds of hours of testimony and evidence but ultimately all we know is the prosecutor did not want an indictment or if he did he didn’t know how to do his job.

    I do object the inclination of both sides to boil the problem down to a single case. Call this the Fallacy of the Champion (from the ancient practice of deciding a case by having two champions fight it out). I think there’s plenty of evidence that Ferguson has a massive police problem. That can be true even if the officer was 100% justified in shooting in this particular case.

  2. Mark says:

    Boonton,
    Re #2, I was unaware of the legal term. I assumed a Dallas grand jury was in the US. Apparently “US” means federal. I’d also assumed to get to 162k cases in one year that would have to include all grand juries not just federal.

    Re #3. Look “Unlike an actual trial, grand juries do not really judge the evidence but judge whether the prosecutor has a case.” So that’s your statement but I’m not sure how it contradicts what I said. Look, they examined the prosecutors evidence and concluded there is not case. They did not look at the defense’ evidence, but so what? If they didn’t think the prosecutor had enough to go on, then how does that contradict the notion that there is any reason to proceed further.

    I do object the inclination of both sides to boil the problem down to a single case. Call this the Fallacy of the Champion (from the ancient practice of deciding a case by having two champions fight it out). I think there’s plenty of evidence that Ferguson has a massive police problem. That can be true even if the officer was 100% justified in shooting in this particular case.

    Hence my paragraph about the left’s confused “we need more police” coupled with “we need less police activity” in the inner city. It also highlights the amusing notion that the actual problem is not policing. So, as an aside, the President suggests a few things to “fix” this “go-hero” camera’s for cops (which just as likely will cement the cops cases not the (liberals assumed) reverse), to racially adjust cops demographics (which the WSJ points out today has shown no effect in cities it has been done, kinda like the liberal plea for stricter gun laws in ignoring the evidence), and something else I forget at the moment. So. Do you think any of these suggestions will make a difference or is that too just noise. If it is just not just noise, what do you think of his suggestions might be effective.

    Think of bounced checks at a bank. “Out of 1,000 checks presented today, only 5 bounced!” Does that mean it is a waste of time for the bank to check the accounts for available funds?< ?blockquote>It is low cost to check for available funds for a bank, unlike what might be the cost of a grand jury (“grand” makes it sound expensive, I don’t know the actual costs). There is no human cost (just a computer internal check) to verify balance. This is not true of a Grand jury. The point is, apparently according to you grand juries are to avoid prosecutor abuse, i.e., a check that the prosecutor has a case and isn’t just wasting the court and the defendant’s time. If this is cheap, OK. If it is expensive, there are other ways of doing the same thing, for example, finding or censuring the prosecutor/DA’s office in some way when the judge in the actual case finds him abusing his authority. The point is, if “always indicts” is true, then why bother.

    There’s no excuse for a prosecutor failing to secure an indictment just as there’s no excuse for you to bounce a check with your bank. The purpose of the grand jury is to act as a check to require that the prosecutor has at least a half-assed case. The actual judging of the case, though, happens at trial, not indictment.

    Which is why these failures to indict often happen when the prosecutor is forced to a grand jury by political pressure and not on the basis of the case. He nothing but a half-assed case, but the media (not to mention the White House) are forcing him to “double check”.

    ultimately all we know is the prosecutor did not want an indictment or if he did he didn’t know how to do his job.

    Or that the evidence didn’t warrant a case.

  3. Boonton says:

    Re #2, ‘Federal’ versus ‘State’ is not really a legal term IMO. Two different types of jurisdictions and the source document was totally up front about that. Both numbers illustrate that it is exceptional for any grand jury in the US to fail to indict. The only exception to this seems to be when grand juries are called to investigate police shootings.

    So that’s your statement but I’m not sure how it contradicts what I said. Look, they examined the prosecutors evidence and concluded there is not case.

    Not what I said. To be blunt the purpose of a grand jury is to rubber stamp a Prosecutor’s case. If you have a grand jury that fails to indict, you have a prosecutor whose case was so bad that he couldn’t even get it ‘rubber stamped’ which indicates the prosecutor is unable to do his job correctly. Grant juries are not investigative bodies assigned to see if a valid case can be made from the evidence. The use of them to ‘clear’ cops in police shootings IMO is not effective.

    Hence my paragraph about the left’s confused “we need more police” coupled with “we need less police activity” in the inner city

    The two may not be mutually exclusive. A lot of the behavior by the police during the initital protests, the amateurish pointing of loaded weapons at crowds, the over the top military vehicles, the seeming random and arbitrary arrest of journalists and peaceful protesters on trumped up charges that were later dropped without even proper logging of the cause of arrest all could be a symptom of over compensation for both too few police and too little leadership among the police. In that condition cops may indeed react with an unwritten policy of ‘bash heads or shoot first when in doubt’. This would be a failure both to the community and to the rank and file police.

    It is low cost to check for available funds for a bank, unlike what might be the cost of a grand jury (“grand” makes it sound expensive, I don’t know the actual costs).

    True but shouldn’t the cost of the gov’t putting someone’s freedom and life be set pretty high?

    The point is, apparently according to you grand juries are to avoid prosecutor abuse, i.e., a check that the prosecutor has a case and isn’t just wasting the court and the defendant’s time. If this is cheap, OK. If it is expensive, there are other ways of doing the same thing, …

    In some cases the grand jury requirement can be waived and instead the prosecution can simply present their case to a judge who will clear or deny the case going forward. The Constitution gurantees the right to a grand jury for capital crimes, again, though, that is in Federal Courts. A lot of serious crimes like rape and murder are likely to have you tried in a state court. Also a grand jury can be waived with a plea agreement. Presumably if the prosecution had a good case, the defense would be more inclined to accept a plea while a very poor case would likely result in them insisting on the full trial including grand jury.

    In the case of a really bad case, the grand jury system might save money since if the defense insists upon an indictment, the grand jury can stop the prosecution in its tracks. That would prevent a more expensive full trial and would punish the prosecution’s reputation harshly.

    Which is why these failures to indict often happen when the prosecutor is forced to a grand jury by political pressure and not on the basis of the case.

    I think the problem here is that prosecutors like to pretend that they can dodge a difficult decision not to bring charges by the fiction of a grand jury ‘investigating’ and choosing not to indict. This is not what grand juries are optimal at doing so some alternative should be explored instead. Perhaps special prosecutors could be appointed to handle politically charged cases or cases involving cops that the day to day prosecutor may be inclined to hold off on.

    Ultimately, though, if we are talking about prosecution then we have already achieved failure. Even if this shooting was dirty and even if the cop was prosecuted and punished that would not, IMO, solve the underlying problem of distrust between the community and its police dept.

  4. Mark says:

    Boonton,

    Two different types of jurisdictions and the source document was totally up front about that.

    I said I missed the distinction. I’ll say it again. I missed the distinction between federal and state courts.

    To be blunt the purpose of a grand jury is to rubber stamp a Prosecutor’s case. If you have a grand jury that fails to indict, you have a prosecutor whose case was so bad that he couldn’t even get it ‘rubber stamped’ which indicates the prosecutor is unable to do his job correctly

    Or, as noted by 538, that a solid case was untenable because the evidence was insufficient and no case was possible. The reason however that the prosecutor brought this to the grand jury was not related to the evidence, i.e., he was pressured by political or popular forces to do so anyhow.

    Grant juries are not investigative bodies assigned to see if a valid case can be made from the evidence.

    doesn’t follow from “If you have a grand jury that fails to indict, you have a prosecutor whose case was so bad” … again why does this not indicate that there was no case to be made?

    A lot of the behavior by the police during the initital protests,

    So? Doesn’t explain the later riots.

    True but shouldn’t the cost of the gov’t putting someone’s freedom and life be set pretty high?

    Not if it is just for show and pointless.

    I think the problem here is that prosecutors like to pretend that they can dodge a difficult decision not to bring charges by the fiction of a grand jury ‘investigating’ and choosing not to indict.

    But that isn’t what happened here. An incredible volume of investigative work was done.

    Apparently the grand jury is only required if the prosecutor is seeking the death penalty. Is that not correct?

  5. Boonton says:

    Or, as noted by 538, that a solid case was untenable because the evidence was insufficient and no case was possible. The reason however that the prosecutor brought this to the grand jury was not related to the evidence, i.e., he was pressured by political or popular forces to do so anyhow.

    I agree except the pressure is backwards here. The pressure is to ‘rubber stamp’ cop shootings by pretending the grand jury mechanism is some type of investigation that vindicates a shooting as lawful. It appears policy in many states to automatically submit many or all cop shootings to grand juries regardless of circumstances.

    Normally since the prosecutor runs the grand jury, a prosecutor would not waste any time calling a grand jury unless he had a case worthy of an indictment. It appears that sometimes grand juries are used as a dodge by a prosecutor who decides not to persue a case but who wants to pretend the decision was made by others.

    So? Doesn’t explain the later riots

    So what? Riots are choatic events likely to erupt whenever you have a lot of people in the street combined with high emotions. Who needs to explain, say, why out of 100 teenagers in the street at night one decides to break the window of a cell phone store and 20 others join in snatching up what they can.

    Juries

    Not if it is just for show and pointless.

    This is kind of like saying fire alarms are pointless because they rarely go off. The check keeps many prosecutors in line since it would be humiliating to fail to secure an indictment (when the prosecutor is trying to get one). Hence most prosecutors will think twice about brining horrible stinkers of a case most of the time.

    But that isn’t what happened here. An incredible volume of investigative work was done.

    But not judgement. Again the ruse here is tossing thousands of pages at a grand jury and then pretending they did an investigation and made a judgement that there was no valid case.

  6. Mark says:

    Boonton,

    It appears that sometimes grand juries are used as a dodge by a prosecutor who decides not to persue a case but who wants to pretend the decision was made by others.

    A more charitable way of saying that is that sometimes a prosecutor realizes he has no case but is forced by outside pressure to demonstrate that in a way that shows that he actually reviewed the evidence and that the evidence is insufficient to prosecute.

  7. Mark says:

    Boonton,

    But not judgement. Again the ruse here is tossing thousands of pages at a grand jury and then pretending they did an investigation and made a judgement that there was no valid case.

    I don’t understand what you mean by this.

  8. Mark says:

    Boonton,

    This is kind of like saying fire alarms are pointless because they rarely go off.

    Nah. It’s like saying you are required to pull a fire alarm everytime you light a fire bigger than a lighter, so the fire department can check you for safety. Look the Constitution says this is only needed in capital cases, i.e., when you are seeking the death penalty. 162k grand juries is a unreasonably large number of cases in which the death penalty was sought.

  9. Boonton says:

    A more charitable way of saying that is that sometimes a prosecutor realizes he has no case but is forced by outside pressure to demonstrate that in a way that shows that he actually reviewed the evidence and that the evidence is insufficient to prosecute.

    It would seem the fiction being done here is the complete opposite. In theory the prosecutor could review none of the evidence at all. He simply has to make sure it is all submitted to a grand jury and let them decide whether to indict or not.

    This feels like some type of review on police shooting and violence since in theory somebody who doesn’t have a vested interest in good day to day working relationships with police has a theoretical chance of getting criminal charges filed when there is a criminal abuse of power. Clearly, though, it is not a good way to handle these cases and the problem here isn’t ‘outside pressure’ since many states automatically send all cases of police shootings to grand jury review regardless of public pressure.

    Likewise even if grand juries were good at investigating, it only address the most serious examples of police abuse that rise to criminal conduct. What I think places like Ferguson could use would be something like a Civilian Complaint Review Board which could hear all types of complaints against police, serious or minor. They can be staffed by professional investigators, retired prosecutors, former police supervisors and others whose interests are less entwined with police dept. relations. They could be empowered to refer to a special prosecutor criminal accusations of criminal conduct but below that they would have the power to follow up on proven charges of less serious misconduct.

    don’t understand what you mean by this.

    Here’s a thousand pages of evidence. What do you do with it? Lawyers for both prosecution and defense do not just present evidence but craft a case. Here’s a story of why the guy is guilty. This story ties the evidence together, is consistent with it, but also gives it context. It explains why some of the evidence should be given a lot of weight, other pieces can be written off as distractions. Here’s another story for why the guy is not guilty. This is the job of the lawyers, not the jury. Can a jury sometimes do this job on their own? Perhaps, civilians can sometimes land a plane on their own too, doesn’t change the fact that it isn’t their job to do so. The juries job is to decide whether the case the lawyers have crafted works coherently with the evidence or not. In essence what has happened here is telling the grand jury to play prosecutor, defense attorney and judge all at once and when the jury freezes and ends up opting for the most conservative route of no action that is then declared a vindication.

    Look the Constitution says this is only needed in capital cases, i.e., when you are seeking the death penalty. 162k grand juries is a unreasonably large number of cases in which the death penalty was sought.

    They are required for capital (i.e. death penalty) and ‘infamous’ crimes. Infamous means felony which is generally any crime you can get over a year of prison time for. That, though, is on the Federal level only but many states mirror their Constitutions on the Federal one. It is interesting to note, though, that grand juries only have constitutional provision for indictments, not investigations. The Constitution never requires anything like “look at this case and decide who, if anyone, should be indicted”.