How One Woman Could Hit The Reset Button In The Case Against Darren Wilson

[ksen]

http://thinkprogress.org/justice/20...ial-prosecutor-and-bring-justice-to-ferguson/

There is a provision of Missouri Law — MO Rev Stat § 56.110 — that empowers “the court having criminal jurisdiction” to “appoint some other attorney to prosecute” if the prosecuting attorney “be interested.” (The term “be interested” is an awkward legal way to refer to conflict-of-interest or bias. The statute dates from the turn of the 20th century.)

The court with jurisdiction over Darren Wilson’s case is the 21st Judicial Circuit Court of Missouri. That means the power to appoint a special prosecutor is held by Maura McShane, the Presiding Judge of the 21st Circuit.

Missouri courts, at times, have interpreted their power to appoint a special prosecutor broadly, to include not only blatant conflicts — like the prosecutor being related to the defendant — but also subtler conflicts that reveal themselves through the prosecutor’s conduct in the case.

In the 1996 case of State v. Copeland, a Missouri court replaced the prosecutor because the judge “sensed that [the prosecutor’s] sympathies for [the defendant] may have prevented him from being an effective advocate for the state.” The judge “found the adversarial process to have broken down in that [the prosecutor] appeared to be advocating the defendant’s position.”

I hope this happens.

 

[Rhea]

Can it happen at this stage now?

 

[ksen]

I don't see why it couldn't.

 

[doubtingt]

So, even though there is no evidence of bias or conflict of interest, or unprofessionalism by the prosecutor, you hope the court pretends that there was.

Predictable.

Just because the outcome of a process doesn't match your ideologically preferred outcome, doesn't mean the process itself was unfair or corrupted. Inability to distinguish fair process from preferred outcomes is the mark of a rabid, blind, and dangerous ideologue.

Amazingly, accusations of "bias" are being rooted entirely in the observation that the prosecutor wasn't sufficiently biased against Wilson. and did not hide most of the relevant evidence, and did not aggressively try to persuade the grand jury to indict him.
How truly absurd.

If prosecutors typically do these things, then the problem, bias, and injustice is with them and the typical cases, not with McCulloch and this case. This case was a model of how it should be done. But as I explained in the other thread, typical grand juries are not relevant here, because this only went to a grand jury for atypical reasons, namely political efforts to make the lack of sufficient evidence for a prosecution more transparent, rather than in typical cases where there is strong evidence of guilt and thus using the grand jury as a means to bring the case to trial.

 

[ksen]

When a prosecutor acts more like a defense attorney then that's evidence of bias and unprofessionalism (see the link to State v Copeland in the OP).

McCulloch was definitely more defense attorney than prosecuting attorney in this case.

 

[laughing dog]

So, even though there is no evidence of bias or conflict of interest, or unprofessionalism by the prosecutor, you hope the court pretends that there was.

There is clearly an appearance of a conflict of interest. Not only was his police officer father killed by a black man, but he has never indicted a police officer in a shooting. Justice also requires the appearance of impartiality which obviously was not met in this case.

 

[Jimmy Higgins]

So, even though there is no evidence of bias or conflict of interest, or unprofessionalism by the prosecutor, you hope the court pretends that there was.

The prosecutor called the shooter to the Grand Jury and then let the shooter defend himself. That is unheard of.

In all likelihood, the officer would be found not guilty in a trial, however, we didn't even get that far.

 

[Trausti]

So, even though there is no evidence of bias or conflict of interest, or unprofessionalism by the prosecutor, you hope the court pretends that there was.

The prosecutor called the shooter to the Grand Jury and then let the shooter defend himself. That is unheard of.

In all likelihood, the officer would be found not guilty in a trial, however, we didn't even get that far.

A grand jury in Missouri has subpoena power to compel any witness to testify. Wilson's has a Fifth Amendment right protecting him from giving incriminating testimony. But if the grand jury wanted to hear from him, and he chose to waive his Fifth Amendment rights (which he obviously did), that's that.

 

[doubtingt]

When a prosecutor acts more like a defense attorney then that's evidence of bias and unprofessionalism (see the link to State v Copeland in the OP).

McCulloch was definitely more defense attorney than prosecuting attorney in this case.

Total nonsense. Defense attorneys present no evidence other than that which supports innocence, they make highly emotional appeals, put the family of the defendant on stage to build his character as a loving person, etc.. McCulloch presented all of the core evidence. The fact that almost all of it supported Wilson's account is not his fault, its the fault of the reality that Wilson's account is accurate. McCulloch acted like prosecutors due every time they don't choose to press charges against the millions of people every day that they could but don't press charges against. He knew the evidence suggested innocence and certainly had zero chance of a fair and impartial guilt verdict, so he himself rationally and properly did not believe the evidence came close to suggesting Wilson's guilt. It is equivalent to a DA that knows the evidence points to someone else rather than the accused. You think they should just go ahead and do everything, including mislead the jury to convict people they know are innocent. No wait, you only believe they should do that when the accused is a cop and the victim is black. Therefore, he did not deliberately try to mislead the grand jury and distort the facts in favor of an indictment that would only lead to a pointless trial of an unjustly charges person he knew (as the grand jury members knew) was not guilty. He acted like a rational and just person doing his proper job, which is to prosecute people who he reasonably has grounds to believe are guilty. Prosecuting every person whose blood the irrational mob lusts for to sooth their aching existential crisis is not the proper role of a prosecutor.

The prosecutor called the shooter to the Grand Jury and then let the shooter defend himself. That is unheard of.

Unheard of in police shootings where most of the forensic evidence supports the shooters account? Show evidence of that. Because that is the only type of case that is comparable.
Once again, cops having guns, initiating conflicts, and shooting when the person poses a threat is part of a cops duty. It is not any part of the duty or acceptable behavior for non-cops. So, what is typical for cases of non-cops shootings has virtually no relevance. The basic facts that would incriminate a non-cop do nothing to implicate a cop under similar circumstances.

There is clearly an appearance of a conflict of interest. Not only was his police officer father killed by a black man,

This is as close as anything gets, and it isn't evidence of any actual bias, just the suggestion that under massive assumptions, such as he is a racist that views all blacks as though they are his father's killer, would make bias plausible. That is a pretty low bar. It means every DA and judge must be eliminated from every case, if any family member was ever wronged by a person of the same race or gender as the defendant. We'd quickly run short on DAs and judges who could try these cases.

 

[ksen]

Total nonsense. Defense attorneys present no evidence other than that which supports innocence, they make highly emotional appeals, put the family of the defendant on stage to build his character as a loving person, etc.. McCulloch presented all of the core evidence. The fact that almost all of it supported Wilson's account is not his fault, its the fault of the reality that Wilson's account is accurate. McCulloch acted like prosecutors due every time they don't choose to press charges against the millions of people every day that they could but don't press charges against. He knew the evidence suggested innocence and certainly had zero chance of a fair and impartial guilt verdict, so he himself rationally and properly did not believe the evidence came close to suggesting Wilson's guilt. It is equivalent to a DA that knows the evidence points to someone else rather than the accused. You think they should just go ahead and do everything, including mislead the jury to convict people they know are innocent. No wait, you only believe they should do that when the accused is a cop and the victim is black. Therefore, he did not deliberately try to mislead the grand jury and distort the facts in favor of an indictment that would only lead to a pointless trial of an unjustly charges person he knew (as the grand jury members knew) was not guilty. He acted like a rational and just person doing his proper job, which is to prosecute people who he reasonably has grounds to believe are guilty. Prosecuting every person whose blood the irrational mob lusts for to sooth their aching existential crisis is not the proper role of a prosecutor.

The prosecutor called the shooter to the Grand Jury and then let the shooter defend himself. That is unheard of.

Unheard of in police shootings where most of the forensic evidence supports the shooters account? Show evidence of that. Because that is the only type of case that is comparable.
Once again, cops having guns, initiating conflicts, and shooting when the person poses a threat is part of a cops duty. It is not any part of the duty or acceptable behavior for non-cops. So, what is typical for cases of non-cops shootings has virtually no relevance. The basic facts that would incriminate a non-cop do nothing to implicate a cop under similar circumstances.

There is clearly an appearance of a conflict of interest. Not only was his police officer father killed by a black man,

This is as close as anything gets, and it isn't evidence of any actual bias, just the suggestion that under massive assumptions, such as he is a racist that views all blacks as though they are his father's killer, would make bias plausible. That is a pretty low bar. It means every DA and judge must be eliminated from every case, if any family member was ever wronged by a person of the same race or gender as the defendant. We'd quickly run short on DAs and judges who could try these cases.

 

[Jimmy Higgins]

The prosecutor called the shooter to the Grand Jury and then let the shooter defend himself. That is unheard of.

Unheard of in police shootings where most of the forensic evidence supports the shooters account? Show evidence of that. Because that is the only type of case that is comparable.

Why? The point of a Grand Jury is to get a conviction. You don't put people up there that will hurt those opportunities. And you especially don't let the potential defendant defend his actions.

Once again, cops having guns, initiating conflicts, and shooting when the person poses a threat is part of a cops duty.

Initiating conflicts? I'm pretty certain that isn't a demand being made of the police.

 

[ksen]

Once again, cops having guns, initiating conflicts, and shooting when the person poses a threat is part of a cops duty.

Initiating conflicts? I'm pretty certain that isn't a demand being made of the police.

Haha, good catch

 

[Trausti]

Why? The point of a Grand Jury is to get a conviction. You don't put people up there that will hurt those opportunities. And you especially don't let the potential defendant defend his actions.

The purpose of a grand jury is to secure an indictment. It is rare for the accused to give testimony in a grand jury proceeding because most attorneys would advise their clients against waiving their Fifth Amendment rights.

 

[Jimmy Higgins]

Why? The point of a Grand Jury is to get a conviction. You don't put people up there that will hurt those opportunities. And you especially don't let the potential defendant defend his actions.

The purpose of a grand jury is to secure an indictment.

Absolutely right. Had a case of "can't fucking type the right word" disease there.

It is rare for the accused to give testimony in a grand jury proceeding because most attorneys would advise their clients against waiving their Fifth Amendment rights.

The prosecutor also doesn't want to show any more cards that is required by law.

 

[laughing dog]

This is as close as anything gets, and it isn't evidence of any actual bias, just the suggestion that under massive assumptions, such as he is a racist that views all blacks as though they are his father's killer, would make bias plausible...

Your response ignores his history on police shootings and relies on the logical fallacy of the excluded middle. It does not require that he is a racist or a bigot. Simply that he is unduly influenced by that experience. All of this was brought up before he convened the grand jury, but he continued. In such a sensitive situation, McCulloch's continued presence was guaranteed to taint the outcome.

 

[Trausti]

It is rare for the accused to give testimony in a grand jury proceeding because most attorneys would advise their clients against waiving their Fifth Amendment rights.

The prosecutor also doesn't want to show any more cards that is required by law.

Well, yeah. But the grand jury is entitled to examine any witness it wants to, regardless of the DA's preference. See here:

540.160. Whenever thereto required by any grand jury, or the foreperson thereof, or by the prosecuting or circuit attorney, the clerk of the court in which such jury is impaneled shall issue subpoenas and other process to bring witnesses to testify before such grand jury. After the finding and returning of any indictment by the grand jury, such foreperson, prosecuting or circuit attorney, or jury, shall not have the right to cause any subpoena or other process to be issued for any person who is known or believed by such foreperson, prosecuting or circuit attorney or jury to be a witness in behalf of the person or persons so indicted, or who has been subpoenaed as a witness in behalf of such person or persons, or who such foreperson, prosecuting or circuit attorney or jury may have reason to believe will be summoned as a witness in behalf of such person or persons, in regard to the matter or matters charged against such person or persons in such indictment, except upon the written order of the judge of the court into which such indictment is returned.

http://www.moga.mo.gov/mostatutes/stathtml/54000001601.html?&me=grand%20jury

 

[doubtingt]

Unheard of in police shootings where most of the forensic evidence supports the shooters account? Show evidence of that. Because that is the only type of case that is comparable.

Why? The point of a Grand Jury is to get a conviction.

Wrong. That is the point of a Grand Jury when it is convened on the grounds of there being enough evidence that the prosecutor thinks the accused is guilty. Ideally, that would be the only grounds for a Grand Jury, but unfortunately people like you would go irrational apeshit in cases like this if the prosecutor merely decided on his own not to prosecute, as they do many thousands of times every day in most cases that aren't part of political warfare. Thus, McCullough had to try and placate the irrational mob by allowing a jury to make the rational decision not to prosecute. The unusualness of this case lies only in that there should never had been a Grand Jury in the first place because there was clearly no basis to formally charge Wilson.

Once again, cops having guns, initiating conflicts, and shooting when the person poses a threat is part of a cops duty.

Initiating conflicts? I'm pretty certain that isn't a demand being made of the police.

It absolutely is a demand. Every act of enforcing the law is a form of conflict with any potential law breaker. Wilson telling Brown to get out of the road is a form of initiating conflict. The officers commands conflict with the actions of the other person. Whether that initial conflict escalates to violence is another matter, but if it escalates because of the response of the law breaker, then we require the cop to engage in what can often include physical violent conflict.

Trying to create an extremist strawman as though "conflict" always means a violent exchange won't let you wiggle out of the reality that cops are required to engage in behaviors that are illegal for most people and would incriminate them immediately but have no bearing on whether a cop acted illegally. Thus, what is typical for grand juries for non-cop shooters has little relevance to what makes sense for this case.

 

[doubtingt]

This is as close as anything gets, and it isn't evidence of any actual bias, just the suggestion that under massive assumptions, such as he is a racist that views all blacks as though they are his father's killer, would make bias plausible...

Your response ignores his history on police shootings and relies on the logical fallacy of the excluded middle.

I am not ignoring his history on police shootings. I am merely not making the same baseless unreasoned assumption that you are that the cops he failed to indict deserved to be indicted. Given that very few of the people that cops shoot are unarmed people without any evidence of current or past criminal behavior, the odds are very low that any of the past cases before him involved an unarmed person clearly innocent of criminal wrongdoing. Thus, if he were unbiased, we would still not expect him to have indicted cops in the past. In addition, as I explained many times now, the kind of specific evidence required to justify charges and a trial is far less common with a cop shooter because of the nature of what they are required to do. Thus, even if some of those past cops before McCullough were guilty of an unwarranted shooting, the odds are low that McCullough would have had that kind of evidence he knew was needed to even make a trial more than a reckless waste of time.

It does not require that he is a racist or a bigot. Simply that he is unduly influenced by that experience.

Brown and his father's killer have nothing in common except being black. Thus, unless he is a racist bigot who views all blacks as though they are the same, he would not be particular impacted by that fact. Assuming he would be unduely influence by that experience is to assume he would be unduely influenced by both Brown's race and the race of his father's killer, which is to assume he is a racist.

Furthermore, are you willing to apply the same criteria to every DA, Judge, or Detective with any family member severely wronged by any member of any other race, gender, religious group, etc..?

 

[RavenSky]

When a prosecutor acts more like a defense attorney then that's evidence of bias and unprofessionalism (see the link to State v Copeland in the OP).

McCulloch was definitely more defense attorney than prosecuting attorney in this case.

In addition to his (alleged) history of bias. I will have to dig up the article, but if I recall correctly his father was a police officer killed in the line of duty by a black man and since then McCulloch has shown a pattern of refusing to prosecute cases where black men have been killed by police officers no matter the circumstances.

 

[ksen]

Your response ignores his history on police shootings and relies on the logical fallacy of the excluded middle.

I am not ignoring his history on police shootings. I am merely not making the same baseless unreasoned assumption that you are that the cops he failed to indict deserved to be indicted.

How about just treating them the same way you treat indictment procedures for a civilian? Or if you don't want to do that how about indicting civilians the same way you indict police officers? That would be fair.

Given that very few of the people that cops shoot are unarmed people without any evidence of current or past criminal behavior, the odds are very low that any of the past cases before him involved an unarmed person clearly innocent of criminal wrongdoing.

Evidence that "very few of the people that cops shoot are unarmed people without any evidence of current or past criminal behavior"?

Thus, if he were unbiased, we would still not expect him to have indicted cops in the past.

If he were unbiased he would have proceeded with this indictment the way he proceeded with all of his other indictments. He didn't. And McCulloch even told this grand jury that he was going to run this particular trial differently then all the other ones they had sat through with him.

In addition, as I explained many times now, the kind of specific evidence required to justify charges and a trial is far less common with a cop shooter because of the nature of what they are required to do. Thus, even if some of those past cops before McCullough were guilty of an unwarranted shooting, the odds are low that McCullough would have had that kind of evidence he knew was needed to even make a trial more than a reckless waste of time.

And it doesn't cause you to ask the question "why is this specific evidence usually lacking?" Could it be because forensics never examined Wilson and instead let him go get cleaned up? Could it be because Wilson's handgun wasn't taken into evidence right away but instead Wilson was allowed to turn it in later?

It does not require that he is a racist or a bigot. Simply that he is unduly influenced by that experience.

Brown and his father's killer have nothing in common except being black. Thus, unless he is a racist bigot who views all blacks as though they are the same, he would not be particular impacted by that fact.

How do you know? You can read McCulloch's mind?

Assuming he would be unduely influence by that experience is to assume he would be unduely influenced by both Brown's race and the race of his father's killer, which is to assume he is a racist.

Furthermore, are you willing to apply the same criteria to every DA, Judge, or Detective with any family member severely wronged by any member of any other race, gender, religious group, etc..?

Of course.