Great article by Jeffrey Toobin to frame the Michael Brown case not as “Guilty v Innocent,” but rather why the grand jury outcome was perplexing.
“Michael Brown’s death illustrates, there is a great deal to be said for prosecutors following the customary rules of their profession. To recap the relevant facts: Officer Darren Wilson shot and killed Michael Brown, an unarmed eighteen-year-old man, on August 9, 2014, in Ferguson, Missouri. Robert McCulloch, the local prosecutor, had the authority to charge Wilson with a crime; that’s how the vast majority of prosecutions in the area begin. Instead, McCulloch said that he was going to open a grand-jury investigation and, in an even rarer development, present every scrap of evidence produced in the investigation to the jurors for their consideration.
In Missouri, as elsewhere, grand juries are known as tools of prosecutors. In the famous words of Sol Wachtler, the former chief judge of the New York Court of Appeals, a prosecutor could persuade a grand jury to “indict a ham sandwich” if he wanted to. This is certainly true, but it is true, too, that grand juries retain at least a nominal independence. They usually do what prosecutors want, but they are not legally required to.
In sending Wilson’s case to the grand jury, McCulloch technically turned over to them the decision about whether to prosecute. By submitting all the evidence to the grand jury, he added to the perception that this process represented an independent evaluation of the evidence. But there is little doubt that he remained largely in control of the process; aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment.
The standard for such charges—probable cause, or more probable than not—is generally a very easy hurdle. If McCulloch’s lawyers had simply pared down the evidence to that which incriminated Wilson, they would have easily obtained an indictment.
The grand jury chose not to indict Wilson for any crimes in connection with Brown’s death. In a news conference following the decision, McCulloch laid out the evidence that he believed supported the grand jury’s finding. In making the case for Wilson’s innocence, McCulloch cherry-picked the most exculpatory information from what was assembled before the grand jury. The conclusion may even have been correct; based on a preliminary review of the evidence before the grand jury, it’s not clear to me that a trial jury would have found Wilson guilty beyond a reasonable doubt.
But the goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.
Would Wilson have faced charges if he had been treated like every other suspect in McCulloch’s jurisdiction? We’ll never know—and that’s the real shame of this prosecutor’s approach.”
No, really. If a car-dependent infrastructure has already developed, why try to radically disrupt it for the sake of something that’s foreign to the local way of thinking?
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From those studying the medicinal benefits of centipede venom to those researching the existence of life bearing extrasolar moons, scientists have turned to crowdfunding for issues which have captured the popular imagination but have been overlooked by a traditional grant process. Without commenting on the value of individual projects (one questionable project has funded a review of frog sounds in the Amazon), I’m fascinated by the phenomenon of crowdfunding allowing people to put their money where their passion is.
It’s a cliché that everything in our society costs money, but that doesn’t make it less true. Rather than lament a reality that I can’t even see a way around, (after all, whether it’s rent, utilities, food, or equipment, most money for expenses goes to people who themselves have bills to pay) I love the idea that crowdfunding gives society the opportunity to pay for the things that they deem valuable…
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An email from my dad
Erin Umberg, Brett, Tommy and Ellie:
I don’t know what my great grandfather, Jacob Stein, knew or thought when Lincoln was assassinated 148 years ago. He was alive at the time, but that story has not been passed on. I have often thought it would be interesting to know.
50 years ago today on Friday November 22, 1963 — I was a third grader in Miss Rydell’s class at Our Lady of Lourdes school in Cincinnati, Ohio. (Your Aunt Susan was in first grade at the same school; Uncle Jay in kindergarten in public school; Uncle Greg and Aunt Julie were at home. Your Mom, Robin, was in third grade in Texas — Amarillo.) About 2:00 pm Sister Phillipa, the principal, came over the PA system and announced President Kennedy had been shot. A few minutes later she came on again to say the President was dead. After a couple moments of stunned silence, Miss Rydell began weeping. Soon afterwards I heard other teachers (mostly nuns) in the hallway sobbing loudly. Not long after we were let out to take busses home. The kids were unusually quiet while waiting for the bus and while riding home.
When we arrived home, your grandmother Joan was crying and transfixed by the TV. I had never seen her so sad and so preoccupied. (The closest she came was when the Cincinnati Reds lost the 1961 World Series to the Yankees.) For the next three days the TV was on non-stop one of the three networks that existed at the time. There were no commercials for over three days on any network. I don’t recall if Mom made us watch or we did so on our own. Whatever the case, I remember sitting the couch watching the events in Dallas and Washington non-stop: Jacqueline Kennedy arriving back in Washington; the coffin lying in state with the military standing at attention around the coffin for 24 hours; Lee Harvey Oswald being shot on live TV; the funeral and young “John John” saluting the riderless horse and caisson.
I also recall grandma predicting that somebody was going to short Lee Harvey Oswald when they were transporting him out of the jail — a few minutes before he was actually shot. I think she predicted it because the TV networks were making a big deal out of his appearance and broadcasting the details of where Oswald was going to be and when.
For Catholics — in the early 1960’s — John Kennedy was the equivalent to Barack Obama to African Americans. Although she already had four children — your grandmother was only 27 when Kennedy was elected. She was crazy about Kennedy. She had gone to rallies for Kennedy in 1960 and apparently was in front of the crowd by the stage when he mispronounced a word and she shouted a correction. (I think the word was “Cincinnati.”) We had Kennedy straw like hats and campaign paraphernalia. I recall wearing a hat myself.
Maybe an additional reason she was so enamored of the Kennedy’s was a story she told about the Jansen family having a special connection to the Kennedy family. Her Uncle, my great uncle, Father Cornelius Jansen, was a diocesan priest and a scientist. According to her, Uncle “Corny” (no kidding that is what we called him) knew the Kennedy’s in Florida. Joe Kennedy, the father of John Kennedy, asked Uncle Corny to preserve a special coconut from John Kennedy. (John Kennedy was the skipper of a PT boat that was cut in two by a Japanese ship. The PT boat sunk and most of its crew swam to an island. They were rescued after natives delivered a coconut that had a message craved into it specifying their location.) Uncle Corny apparently preserved it and gave it back to Joe Kennedy Sr.)
Anyway, I thought I would pass this along so when you take your grandchildren to visit our graves at Arlington — and you better — you can also visit the Kennedy gravesite and tell them this story.
Some of the best lessons we ever learn are learned from past mistakes. The error of the past is the wisdom and success of the future.
Tag: Erin Umberg