Thursday, November 27, 2014

Something to think about while we gorge ourselves

In 1975, in Cleveland, Ohio, Harold Franks, a money-order salesman, was murdered in a robbery. Ronny Bridgeman, Wiley Bridgeman and Ricky Jackson were all arrested, charged with capital murder, tried and convicted based on the eyewitness testimony of a 12-year-old named Eddie Vernon.

All three men were sentenced to die in Ohio's electric chair. Mr. Jackson received a reprieve due a paperwork error while the Bridgeman brothers were still on death row when Ohio declared the death penalty unconstitutional in 1978.

For almost four decades, Mr. Jackson proclaimed his innocence. And, for almost four decades, few listened and even fewer cared.

In 2011, Mr. Vernon recanted his testimony to his pastor. He said his testimony was coerced by the police who threatened to arrest his parents if he didn't testify the way the police told him. He told the pastor he was on a school bus at that time of the robbery.

Lawyers with the Ohio Innocence Project filed a motion for new trial in March of this year.

As a result of Mr. Vernon's recantation, and the prosecutor's admission that without an eyewitness the case against Mr. Jackson cannot be prosecuted, Cuyahoga County Judge Richard McMonagle, dismissed the charges against Mr. Jackson and ordered him freed from prison.

While Mr. Jackson is no doubt thankful that his 39 year ordeal is over, this exoneration leaves us with more troubling questions.

Once again we have a man sent to prison for decades because a jury thought the government had proven its case beyond a reasonable doubt - when they were wrong. The conviction was based upon the eyewitness testimony of a child. There was no physical evidence connecting any of the men to the murder. Nothing but the word of a child who was coerced by the police.

This is what happens when we allow the government to lower its burden of proof. If you've ever picked a jury in a criminal case you've heard the prosecutor tell the panel what he or she thinks beyond a reasonable doubt isn't. If you're in Harris County you've probably seen the prosecutor put on the PowerPoint display with the puzzle of the gun with a few missing pieces. If you've ever tried a criminal case you've heard the prosecutor tell the jury to "add it up" (or something similar) when discussing the evidence (or lack thereof).

Every new exoneration points out the deficits in our criminal (in)justice system. Every new exoneration points to the fallacy of the infallibility of eyewitness testimony. And every new exoneration points out how low the state's burden of proof in criminal cases has been allowed to fall.

Mr. Jackson's case isn't the triumph of our system of (in)justice. It's an indictment of it. It should give us all pause whenever we step into the courtroom. It should give us all pause when we sit down to decide whether the state has met its burden of proof.

Ricky Jackson lost 39 years of his life for a crime he didn't commit. That's 39 years that can never be replaced. There is no amount of compensation that can make up for the time that was stolen from him. Meanwhile, those who conspired to convict him walk free.

Some system, huh?

Wednesday, November 26, 2014

Passing the buck, Missouri-style


The Grand Jury didn't choose not to indict Darren Wilson. The St. Louis County District Attorney made that decision. For the uninitiated, let's take a look at how the grand jury system works.

The first thing to remember is that the system is stacked in the prosecutor's favor. There is no voir dire when a grand jury is selected. Due to time concerns, most of the folks who serve on grand juries are retired or hold jobs that allow them to take chunks of time off without reprisal. In many jurisdictions, grand jury commissioners are appointed and they select the grand jury - little need to worry about the grand jury reflecting the diversity of the population in that scenario, however.

Grand juries originally were envisioned to screen cases so that citizens accused of a crime wouldn't face public shame if there was insufficient evidence to go forward. They still serve a screen purpose today - and that's just what St. Louis County DA Robert McCulloch used the grand jury for in this case.

Prosecutors hate bad publicity. But what they really hate is having to make a controversial decision that's going to piss off folks that might vote for them. In a case in which folks are going to be angered one way or the other, the DA looks for someone else to take the heat. And that "someone else" is the grand jury.

The prosecutor is the only person who puts forward evidence before the grand jury. Yes, the (potential) defendant might testify, but only under certain conditions would an attorney take that tack. The prosecutor calls the witnesses, submits the evidence and pushes the grand jury down the path he wants them to take.

Then, once the grand jury announces its decision, the District Attorney can tell everyone within earshot that it was the grand jury's decision to proceed or not. Of course the general public never hears the prosecutor urge the grand jury to indict ("just think of the message it would send to the community if you didn't") or "do what you think is right."

The entire process in the Ferguson case was a circus from the beginning. Most grand jury presentments last but a few minutes and consist of little more than the prosecutor summarizing an offense report. Whatever evidence is submitted is never disclosed - unless the defense attorney can convince a judge that someone is playing fast and loose with the rules.

Mr. McCulloch dragged out this process and did everything in his power to color the facts and bury the case. The case took almost a month to present. He called 60 witnesses. He released all of the information presented to the grand jury. His press conference consisted of him blaming Michael Brown and the media for everything.

He's the one who decided to announce the decision at 8:00 p.m. He's the one who decided to give the people hours upon hours to stew. He's the one who decided to smear Michael Brown's name before the national media.

But we are to believe that any anger folks are feeling about the no-bill should be directed at twelve citizens who did as they were told?

Tuesday, November 18, 2014

Sending in the stormtroopers to quell dissent

Back on August 9 of this year, Ferguson (MO) police officer Darren Wilson shot and killed Michael Brown, an unarmed black teenager. The killing lit a powder keg of pent-up tensions in the St. Louis suburb. The world witnessed police paramilitary units patrolling the streets of Ferguson in riot gear and firing tear gas cannisters and rubber bullets into crowds.

Now, more than three months later, tensions are once again on the rise in Ferguson as everyone awaits the decision of a St. Louis County grand jury investigating the shooting. The local District Attorney refused to recuse himself and the governor resisted calls for a special prosecutor.

If our history is any guide, the grand jury will choose to no-bill the officer either because the DA made no effort to obtain an indictment or because Mr. Wilson wears a badge. Police officers just don't get indicted unless the evidence is undeniable as to what they did.

In anticipation of a no-bill, Missouri Governor Jay Nixon has declared a state of emergency in St. Louis County. The reason given is the need to preserve law and order and to protect people and property. Of course, if you stop to think about it, sending in the paramilitaries when they are the ones responsible for the unrest in the first place makes absolutely no sense. But that hasn't stopped Gov. Nixon.

Nope. You know the last thing Mr. Nixon and his band of wealthy white supporters want to see is a bunch of black people marching and carrying signs reminding folks that racism and oppression are still alive and well in the Show Me State. His declaration is but an attempt to intimidate people into not exercising their right to seek redress of their grievances. By upping the ante with a bunch of black-clad Stormtroopers carrying the latest gear obtained from the US Defense Department and military contractors, Gov. Nixon has assured us of a confrontation.

Mr. Nixon has done nothing since the night Mr. Brown was murdered to address the concerns of the citizens of Ferguson. He has nothing to address the concerns of African-Americans living elsewhere in the state. He has done nothing to address the issue of police brutality. He has done nothing to address concerns over the militarization of the police.

Police officers are supposed to be members of the community. Their job is to serve and protect those around them. But, when you put riot gear on an officer and give him a helmet and a visor, those he's standing across from become the enemy. It's no longer everyone working together, now it's us against them. These paramilitaries are the last line of defense for the Establishment against those who aren't wealthy and/or white.

Wearing a badge does not give one carte blanche to kill people. Police officers are not above the law, they are subject to the same laws that the rest of us are. Maybe one day we'll realize that.