Experts & Public Question McCulloch’s Grand Jury Process

A week ago the world learned the grand jury did not indict Darren Wilson for killing Michael Brown.

It was a big Monday night for St. Louis County prosecutor Robert McCulloch. Stepping to the lectern, with the eyes of the country fixed firmly on Ferguson, McCulloch used his moment in the spotlight to deliver an odd, extended ramble before finally declaring that no charges would be filed against police officer Darren Wilson in the shooting death of Michael Brown. As we think about the subsequent outrage, feast on images of the looting and fires, and pore over the damage assessments and arrest counts, it is worth taking a moment to talk about the road to this ruinous place and the ways in which McCulloch’s decisions exacerbated the problem. (The Independent Grand Jury That Wasn’t: The Ferguson prosecutor’s bizarre, self-justifying press conference revealed his own influence.)

Well, in some parts of the world it was already Tuesday, because it was nearly 8:30pm (CST) Monday night when Bob McCulloch finally said:

AFTER THEIR EXHAUSTIVE REVIEW, THE GRAND JURY DELIBERATED AND MADE THEIR FINAL DECISION. THEY DETERMINED THAT NO PROBABLE CAUSE EXISTS TO FILE ANY CHARGES AGAINST OFFICER WILSON AND RETURN A NO TRUE ON EACH OF THE FIVE INDICTMENTS.

It has been dark outside for hours at this point, it’s no wonder the night played out the way it did. This should’ve been scheduled for 8am, not 8pm.

McCulloch did this knowing that this protest movement, when enflamed, can take on a very different nocturnal character. In the turbulent days and nights of August, when Ferguson was placed forever on the map of the world’s struggles, police authorities came to distinguish between day protests, which were multi-generational and invariably peaceful, and night protests, which were younger and much more unpredictable. Further, McCulloch decided to deliver this inflammatory news at night when national intelligence about outside agitators’ plans to infiltrate Ferguson when the decision is announced was so harrowing it helped influence Gov. Jay Nixon to preemptively declare a State of Emergency and conduct a press conference where the Governor rattled his sabre like invading hordes were descending on Missouri. (The fire Bob McCulloch started) 

From a New York Times editorial:

The St. Louis County grand jury’s decision not to indict the white police officer who in August shot and killed Michael Brown, an unarmed black teenager, would have generated widespread anger and disappointment in any case. But the county prosecutor, Robert McCulloch, who is widely viewed in the minority community as being in the pockets of the police, made matters infinitely worse by handling this sensitive investigation in the worst possible way. 

First, he refused to step aside in favor of a special prosecutor who could have been appointed by Gov. Jay Nixon of Missouri. He further undermined public confidence by taking a highly unorthodox approach to the grand jury proceeding. Instead of conducting an investigation and then presenting the case and a recommendation of charges to the grand jury, his office shifted its job to the grand jury. It made no recommendation on whether to indict the officer, Darren Wilson, but left it to the jurors to wade through masses of evidence to determine whether there was probable cause to file charges against Officer Wilson for Mr. Brown’s killing. (The Meaning of the Ferguson Riots)

Aside from the poor timing of the decision, the months long process was a farce. At the beginning of November I said:

If McCulloch wanted an indictment he’d have handled the case differently, this has been an elaborate act to give the appearance of due diligence while guaranteeing no indictment. (McCulloch’s Process Guarantees No Indictment)

In the last week many in legal & law enforcement professions have combed through the thousands of pages of documents, including former prosecutor Nancy Grace:

Look, do you know how many times I have sided against a cop? Never. But to me, this is bigger than a badge. And I don’t like speaking out against a cop, but this doesn’t add up.

Here her reaction in the video below:

Direct link to above video on CNN here. Another quote from the above:

The grand jurors are like sheep, they’re babes in the woods. The prosecutor’s duty is to seek the truth. I am telling you that the prosecutors, if they want an indictment, they will get an indictment.

This is related to the 1985 comment by then chief judge of New York, Sol Wachtler, that a prosecutor can get a grand jury to indict a ham sandwich if he/she wants.  Ironically, a few years later the Republican judge was indicted, convicted and sentence to 15 months in prison, see The Judge Who Coined “Indict a Ham Sandwich” Was Himself Indicted. McCulloch didn’t want an indictment, he just wanted the appearance of justice.

Back to the grand jury…

On MSNBC Lawrence O’Donnell pointed out how prosecutors gave the grand jury a copy of a 1979 Missouri law that was ruled unconstitutional nearly 30 years earlier, in 1985!

The assistant prosecutors misled the grand jury on the law. At the conclusion of the almost 22 minute segment Lawrence O’Donnell said:

With prosecutors like this, Darren Wilson never really needed a defense lawyer. 

The other part is Darren Wilson was allowed to testify for 4 hours without cross examination from the prosecutors.  Civil rights attorney Lisa Bloom:

So many missed opportunities for cross examination of Wilson. Should have been a grueling session, not the tea party the transcript shows. (see A prominent legal expert eviscerates the Darren Wilson prosecution, in 8 tweets)

A long-time personal friend, an attorney, posted the following on Facebook:

Being a lawyer, I thought I might post some analysis of the grand jury process in the Darren Wilson matter. My grave concern over the conduct of this matter is the prosecutor effectively tried to make it look like a “jury” trial was conducted, without actually bringing the charges against Wilson to cause this to occur. His attempts to demonstrate an exhaustive introduction of physical and witness offered evidence (of the type you typically don’t see at grand jury proceedings) as well as a seeming lack of partisanship only reinforce his attempt to short circuit the normal process and obtain a desired result in a politically sensitive matter. He clearly must have known what he was doing as a grand jury hearing and a jury trial bear little resemblance, despite the common name. A grand jury has no power to convict, only to recommend that a defendant stand trial (subject to due process protections). A regular “petit” jury trial is a constitutionally protected, complicated process that is designed to maximize the likelihood of a fair result, taking into account the challenges associated with individual citizens rendering the verdict. In a jury trial, a judge presides to ensure that the lawyers behave appropriately and to minimize the possibility that a jury is unfairly biased by evidence they are not competent to disregard or qualify (knowing that jurors are often swayed by emotion and subject to clouded reasoning); the judge uses a body of law called the “rules of evidence”, developed over centuries in order to minimize problems caused by the nature of the human participants in the process. A jury trial is inherently and intentionally a partisan battle (mediated by the judge) in which the prosecution and defense vigorously attempt to prove their case, allowing the jury to watch the sausage being made and inform their opinion; cross-examination of the other side’s witnesses is a crucial aspect of exposing lies, bias, ignorance, or other factors that might make that witnesses’ testimony unreliable. A jury trial is typical open to the victims, the families, the public and the press, the openness being crucial to avoiding corruption (or the appearance of corruption) as well as shining a light on the process in order to maximize its integrity. And, a jury trial is subject to appeal so that any errors made by the judge or the other parties in the conduct of the trial can be reviewed by other senior judges, outside of the realm of politics, and overturned if they posed the possibility of impermissibly biasing the verdict. The rules governing a jury trial are certainly not perfect in concept or execution but they have been put into place over generations in order to avoid precisely what happened at the “grand” jury trial of Darren Wilson, an informal procedure closed to the public, not mediated by a judge, not governed by the rules of evidence, not partisan in nature, containing no cross examination and the exposures that typically are made through that process, and not subject to appeal to a higher court. The prosecutor, in his current position for I think 23 years, clearly has to understand the failings of the highly unusual process he conducted but obviously tried to make it appear that Darren Wilson had been effectively tried and acquitted. While there is nothing illegal associated with the prosecutor’s actions as he is elected to oversee the grand jury and determinations if charges are to be brought, the underlying complaints of the protestors about the abuse of power of law enforcement and the distortions of the criminal justice system against minorities are only reinforced and made more manifest by the actions of this prosecutor, in my relatively well-informed opinion.

The problems started on August 9th, with the how the Ferguson Police handled the case:

From the reams of grand jury testimony and police evidence, here are some key points that, if this case had gone to trial, could have been highlighted by prosecutors (not including the witnesses who appeared to contradict Wilson’s testimony): 

1. Wilson washed away blood evidence.
2. The first officer to interview Wilson failed to take any notes.
3. Investigators failed to measure the likely distance between Brown and Wilson.
4. Investigators did not test Wilson’s gun for fingerprints.
5. Wilson did not immediately turn his weapon over to investigators after killing Brown.
6. An initial interview with investigators was delayed while Wilson traveled to the hospital with his superiors.
7. Wilson’s initial interview with the detective conflicts with information given in later testimony.

Source: Ferguson Grand Jury Evidence Reveals Mistakes, Holes In Investigation

More from lawyer Sunny Hostin:

Justice hasn’t been done in the death of Michael Brown. A special prosecutor needs to be appointed to bring charges against Darren Wilson so we can see in a normal jury trial overseen by a judge if a jury will convict or acquit.

— Steve Patterson

Readers: The US War On Drugs Is A Failure; Drug Policy Lecture/Panel Friday

In the poll last week readers overwhelmingly felt our ‘War on Drugs’ is a failure, here are the results:

Q: Currently, the US ‘War on Drugs’ is…

1. a failure 98 [89.09%]
2. neither a success or failure 9 [8.18%]
3. Unsure/No Opinion 3 [2.73%]
4. a success 0 [0%]

Why does this matter? Because police continue wasting resources raiding homes growing okra. Thankfully more and more people, like businessman Richard Branson, are calling for an end to this failed war.

Friday a leading researcher on drugs, Carl Hart Ph.D.,  will be in St. Louis. Dr. Hart will meet with leaders and activists in Ferguson and participate in two public events at Washington University. Having watched his Ted Talk a few times now, watched his congressional testimony, I look forward to seeing him in person. I’ve not read his book High Price: A Neuroscientist’s Journey of Self-Discovery That Challenges Everything You Know About Drugs and Society.

Dr. Carl Hart Lecture: Demystifying the Science of Drug Addiction: Neuroscience, Self-discovery, Race, and U.S. Drug Policy

Date:  October 10, 2014 – 11:00am – 12:00pm
Location:  Anheuser-Busch Hall Moot Courtroom, Room 310

Join the Chancellor’s Graduate Fellows as we welcome Carl Hart, Ph.D., professor of Psychiatry and Psychology, Columbia University and 2014 winner of the PEN/E O. Wilson Literary Science Writing Award.

Dr. Carl Hart Keynote Group Discussion & Panel

Date:  October 10, 2014 – 2:00pm – 5:00pm
Location:  Umrath Lounge, Umrath Hall

Panel and Group Discussion, 2 to 3:30pm
Book Signing & Reception, 3:30 to 5pm

Panel Moderator:
Ken Freedland, Ph.D. – Panel Moderator
Professor of Psychiatry
Washington University

Panel Participants:

• Carl Hart, Ph.D., Professor of Psychology & Psychiatry, Columbia University
• David Patterson, Ph.D., Assistant Professor of Social Work, Washington University
• Rumi Price, Ph.D., Professor of Psychiatry, Washington University
• Juliette Iacovino, Ph.D. Candidate, Psychology, Washington University
• Mario Ortega, Ph.D. Candidate, Neurosciences, Washington University

Click here for a campus map.

I now agree with a majority of Americans that possession of all drugs should be decriminalized, see the study here. This was not easy for me, I came of age at the time First Lady Nancy Reagan was encouraging everyone to “just say no.” We’ve learned a lot in the last 30-40 years, we need to apply this knowledge to our policies.

— Steve Patterson

Readers: Body Cameras For Local Police Worth The Expense

In the poll last week readers overwhelmingly indicated they believe body cameras for local police are worth the expense, here are the results:

Q: Are body cameras for local police worth the expense?

1. Yes 67 [72.83%]
2. Maybe 13 [14.13%]
3. No 9 [9.78%]
4. Unsure/No Opinion 3 [3.26%]

With so many jurisdictions and police departments we’ll likely see a patchwork. One August 20th now suburb voted to equip their officers with cameras:

The Ellisville City Council unanimously approved Wednesday night buying body cameras for each of the city’s 24 officers at a cost of $7,500.

Police Chief Tom Felgate said he thought of making the proposal a year ago. “It’s for the protection of the officers,” said Felgate, who also said the body cameras will likely reduce complaints from violators. (stltoday)

Last month the issue was debated within City Hall:

The cost to outfit the city’s police force with body cameras will come with a price tag of $1.2 million — and that’s just the start.

Richard Gray, the city’s public safety director, told an aldermanic committee on Tuesday morning that the department would need an additional $500,000 to cover labor and maintenance costs, plus an increase in the department’s annual budget of about $800,000 to $900,000 for replacement and maintenance costs. (stltoday)

The police union is speaking up:

The police union said it must agree to any policy covering body cameras before a policy is adopted.

“They can’t employ this equipment without violating the union contract they signed,” said Jeff Roorda with the St. Louis Police Officers Association.

Union representatives told News 4 police and the union must forge an agreement on what the recordings will be used for before any decision is made on whether to use body cameras. (KMOV)

Over the weekend a Ferguson officer was shot in the arm, but the camera wasn’t turned on. Other departments have a way to deal with this:

There’s also an important feature called the pre-event video buffer.

The camera, always on, records half-minute clips. If nothing happens, the piece is erased and the camera starts over. But if an officer spots something and hits the record button, the previous 30 seconds is preserved at the beginning of the recording. (San Francisco Gate)

I’ve not seen any mention of this 30 second buffer in local news reporters.

Further reading:

• New York Times: Wearing a Badge, and a Video Camera
• Vox: How body cameras could change police

Hopefully we’ll see more use of body cameras and a reduction of force, citizen complaints.

— Steve Patterson

Readers Use Plastic (Debit/Credit) For Most Purchases

You may have heard the phrase “Cash is King” before, but it doesn’t refer to paper or coin currency:

The belief that money (cash) is more valuable than any other form of investment tool. The “cash is king” phrase is typically used when prices in the securities market are high and investors decide to save their cash for when prices are cheaper. It can also refer to the balance sheet or cash flow of a business; a lot of cash on hand is normally a positive sign, while strong cash flow allows a company more flexibility in regards to business decisions and potential investments. (Investopedia)

Currency is being replaced with plastic and digital money, just in time too:

In 2013, the cost of making pennies and nickels exceeded their face value for the eighth year in a row. The cost of minting a penny stood at 1.8 cents, nearly twice its face value. Nickels cost twice as much as dimes – 9.4 cents vs. 4.6 cents – despite being worth only half as much. (The Washington Post)

How does this compare to paper currency?

Each year, the Federal Reserve Board projects the likely demand for new currency, and places an order with the Department of the Treasury’s Bureau of Engraving and Printing, which produces U.S. currency and charges the Board for the cost of production. The new-currency budget for 2014 is $826.7 million, and reflects the following costs per denomination: 

• $1 and $2 = 5.4 cents per note
• $5 = 10.1 cents per note
• $10 = 9.2 cents per note
• $20 and $50 = 10.2 cents per note
• $100 = 13.1 cents per note (source: Federal Reserve)

A nickel costs more to make than a dollar and ten dollar notes? Over $800 million per year to create the physical currency some use?

As of July 2013, currency in circulation—that is, U.S. coins and paper currency in the hands of the public—totaled about $1.2 trillion dollars. The amount of cash in circulation has risen rapidly in recent decades and much of the increase has been caused by demand from abroad. The Federal Reserve estimates that the majority of the cash in circulation today is outside the United States. (Source: Federal Reserve)

Many still use cash, but the numbers are shrinking:

The national telephone survey of 983 adult U.S. credit card holders found that 1 in 3 usually uses a credit card or a debit card for in-person purchases of less than $5. The breakdown: 11 percent prefer credit cards, 22 percent debit cards, 65 percent cash.

But the generational divide is striking. A slight majority (51 percent) of consumers 18-29 prefer plastic to cash, the only age group to do so. A preference for cash becomes stronger in each advancing age bracket, until at age 65-plus, 82 percent prefer cash. (CreditCards.com)

Here’s another look:

While credit and debit cards represent more than half of the purchases made for retail goods and services in the U.S., cash continues to dominate in small transactions. A recent consumer survey conducted by the Federal Reserve found that cash represented 66% of transactions under $10 and 58% of transactions under $25. When the transaction was more than $50, cash was used in less than 20% of the payments. (Wall Street Journal) 

It was the above statistics on cash use that prompted the poll last week, here are the results:

Q: What size purchase would you use cash versus plastic (debit/credit)?

1. No amount, I use plastic for most purchases 49 [55.06%]
2. Cash for $20 or less 13 [14.61%]
3. Cash for $5 or less 11 [12.36%]
4. Cash for $10 or less 9 [10.11%]
5. Any amount, I use cash for most purchases 6 [6.74%]
6. Unsure/No Answer 1 [1.12%]
7. Cash for $15 or less 0 [0%]

The results make me wonder if location (urban vs suburban vs rural) has a role in cash vs plastic use? Income & education level? Include me among the 55% that use plastic for nearly every purchase, regardless of amount. I just know I rarely have more than $5 in cash on me, only for emergency stations or the occasional retailer that doesn’t take plastic for sales under some limit.

Despite the shift away from cash, using plastic is far from perfect. Last year many of us got new card numbers after the data breach at Schnucks grocery stores. Since then we’ve seen data breaches from nationwide retailers like Target, Neiman Marcus, and recently Home Depot.

That’s the risk of using debit & credit cards, right? For the moment:

Beginning later next year, you will stop swiping the credit card. Instead, you will insert your card into a slot, just like people do in much of the rest of the world, where the machine will read a microchip, not a magnetic stripe. You’ll still be signing for the time being, but the new system also enables the use of PIN numbers, if card issuers decide to add them to their cards.

The U.S. is the last major market to still use the old-fashioned swipe-and-sign system, and it’s a big reason why almost half the world’s credit card fraud happens in America, despite the country being home to about a quarter of all credit card transactions. (Wall Street Journal) 

Yes, we’re the last to use swipe-and-sign. I remember the 80s well when we used carbon slips to get impression of the face of cards, before the back magnetic strip was common.

But this type still isn’t the latest. Soon cards will have a chip imbedded allowing customers to just tap the card at retail stores with appropriate POS (Point of Sale) systems, my Ventra card for Chicago’s transit system has a chip and can be used as a prepaid debit card as well.

Alternatively your physical cards won’t be used, your phone will store the information and use NFC (Near Field Communication) to communicate with the store’s POS. Interesting times ahead.

— Steve Patterson

The St. Louis County Municipal Court Racket

Since Michael Brown was shot & killed by Ferguson police officer Darren Wilson on August 9th, the entire country has learned a dirty little secret: some of our municipalities make big money ticketing & arresting our residents, often minorities. Just as corporations that operate  for-profit prisons seek more prisoners, some of the 90 unsustainable municipalities within St. Louis County need to stop people driving through their tiny municipal borders to keep the municipal coffers full:

Unfortunately, for many of the poorest citizens of the region, the municipal courts and police departments inflict a kind of low level harassment involving traffic stops, court appearances, high fines, and the threat of jail for failure to pay without a meaningful inquiry into whether an individual has the means to pay. (ArchCity Defenders: Municipal Courts White Paper)

I recommend reading all 37 pages of the ArchCity Defenders: Municipal Courts White Paper, it’s an eye-opener! They looked at 60 courts and found “approximately thirty of those courts did engage in at least one of these [illegal and harmful] practices.” The report focuses on the three “chronic offenders”: Bel-Ridge, Florissant, and…Ferguson.

A personal friend has two citations from Vinita Park, population 1880, but the fine amounts aren’t on the citations he was issued. Neither of his citations were for speeding.

Logging online and entering your citation number doesn’t bring up the fine amount either, you must know it to enter and pay it. Late fees, of an unknown amount, are added. A bench warrant is issued if you miss the court date.  My friend finally reached a person by phone at Vinita Park City Hall that could tell him the amounts. Earlier calls went unanswered.

Yesterday I posted about the Flordell Hills, pop 822, city website which doesn’t list the elected officials, but has a detailed court section accepting online payments.  Their new police force begins October 1st.

More affluent municipalities, such as Chesterfield, don’t need to use such tactics to survive financially.  Their residents & visitors would never tolerate the injustices.

The poor in the region live in or drive through these predatory municipalities daily. Ferguson is taking steps toward change.

— Steve Patterson