There are too many ethics topics for me to cover adequately as it is. This is frustrating. That the Ferguson Ethics Train Wreck is generating ethics issues on a daily, even hourly basis creates a professional dilemma for me. I don’t want to appear obsessed with this mess; I’m not. I am really quite sick of it, and sick as well—and depressed—by the relentless stream of emotional, incompetent, and toxic opinions issuing from the news media, well-meaning but ignorant friends, and in some cases, professionals who appear overwhelmed by confirmation bias. One of my father’s favorite lines was “My mind’s made up, don’t confuse me with facts,” and I doubt that I have ever seen commentary on an event so dominated by that state of mind. Except, perhaps, the Trayvon Martin-George Zimmerman fiasco.
Allow me, then, to indulge in this compromise, while I wait for the entries in the Ethics Alarm contest to find the most unethical article, essay or blog post about Ferguson. Here are eleven points about the current Ethics Train Wreck that I would devote full posts to if I had the time and we lived in a Hell where Ferguson was the only thing going on. I may write full posts on a few of them yet, but meanwhile, here are shorter summaries that I hope you can use to enlighten some of your friends, relatives and associates afflicted with jerking knees….
1. We keep hearing that Officer Wilson is suspect and not credible because he expresses no remorse, and seems “cold.” This attitude projects the critics’ unjustified conclusions onto Brown, who doesn’t share them and shouldn’t. Why don’t interviewers point this out? If Brown was killed in self-defense, prompted by his own threats to the officer, Wilson shouldn’t be remorseful. Remorse means “deep regret or guilt for a wrong committed.” Wilson only did wrong if he shouldn’t have shot Brown, which is the assumption—an evidence-free assumption—of those who want him tried for murder. As for “cold”: Wilson’s whole life has been turned upside-down because a community and a substantial part of the nation have decided to make him pay the price for insensitive and poorly run police departments over decades and across the country. People are calling him a murderer based on political agendas. He’s supposed to respond to that warmly?
2. On ABC this morning, Jelani Cobb, a professor of African-American studies—and boy, are we learning a lot about the racist biases of that area of scholarship lately—pronounced the testimony of Wilson “fantastical” based on this statement:
“At this point [Wilson says he had fired at the approaching Brown], it looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him. And the face that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way…
Cobb said this sounded like Wilson was describing action from a super-hero comic. Thus does confirmation bias make a professor stupid, assuming Cobb really believes what he said. Wilson is describing what happened as he experienced it; he says that the large man seemed to steel himself to keep coming despite being wounded, and uses a metaphor. He didn’t literally mean that Brown got bigger. Of course he didn’t. The same kind of criticism has been used regarding Wilson’s description of Brown, while struggling with him in the car, as looking “like a demon, that’s how angry he looked.” Have I ever seen a family member, a friend, an adversary, whose face is so contorted with rage and emotion that I might say that they look “demonic”? Absolutely. The critics who have fastened on to this mere turn of phrase by a man who is not F. Scott Fitzgerald and who cannot be held to exalted standards of expression just show that they are grasping at straws.
3. Very, very few lawyers and prosecutors, of any partisan persuasion, believe that there was sufficient evidence to charge Wilson. The news media, especially cable news, have completely misrepresented that fact. They keep interviewing partisan lawyers and lawyers playing to specific groups they are allied to by ideology. Rudy Guliani, a terrific prosecutor and no racist, has even said that the case shouldn’t have gone to the grand jury. (Rudy knows that such a decision was politically unfeasible. I hope.)
4. Non-lawyers, including a commentator on ABC this morning whom I respect tremendously, keep saying that they don’t understand why the prosecutor didn’t just bring the case to trial. To this I have a problem reacting with anything other than, “ARRRGHHHHHHHHHHH!!!!!” One pundit—I had the link but lost it, and if someone finds it, submit it to the contest—actually wrote that Wilson should have been tried even though he couldn’t be convicted!
I am looking at Prosecutorial Ethics (Second Edition), by R. Michael Cassidy. It is not a radical tome. Right here on page 13, it says that The NDAA Standards and the ABA Criminal Justice Standards state “that a prosecutor should not commence a criminal prosecution unless the prosecutor expects that that there will sufficient admissible evidence to convict the defendant.” The U.S. Attorney’s Manual takes a slightly different approach: it says that there should be no charge unless “the prosecutor reasonably believes that an unbiased finder of fact will be able to find guilt beyond a reasonable doubt.”
Under either of these standards, Wilson could not be ethically charged. Got that? Everybody? It would be unethical for Wilson to just be charged to try to make the lynch mob happy, which is really what it would be. Cornel West, another former African-American Studies professor, at Harvard and Princeton, and now a full-time rabble-rouser, said recently that the proof of systemic racism in the Brown shooting was that any time Americans kill anyone, they are tried for murder, and should be. He’s a professor? He sure isn’t a lawyer; he doesn’t even watch enough lawyer TV shows. (On this and some other topics in this post, this article is relevant and helpful—and correct.
5. Passionate people are just irrationally certain what is right here based on internet memes and what they see on MSNBC, and I have no idea how to ethically deal with them. They say “The system is broken!” I say, “A broken system would be one where we charge a white cop with murder without evidence because the civil rights establishment picked the incident to make a stand based on bad facts and the representations of the victim’s parents.” They say, “The prosecutor set out to let the cop go! He’s supposed to seek an indictment!” I say: “You don’t know what you are talking about. Grand juries can be used as neutral investigative bodies. The prosecutor used the grand jury in this case to back up what would have been his decision if people weren’t demanding a prosecution. That was the right course.” They say, “A prosecutor can get a grand jury to indict a ham sandwich!” (Judge Wachler’s famous quip.) I say, “That was criticism, not the description of just process. Do you realize you are arguing for over-zealous prosecution of the sort that gets innocent people sent to jail? I was a prosecutor. I studied prosecution ethics. I was a defense attorney. You don’t know what you’re talking about.” They say, “You are part of the broken system then. Why don’t you stop taking your opinions from Fox news?”
And it takes everything in my being not to say, usually to a friend: “You are a biased, ignorant, dangerous fool. Shut up and learn something: you don’t have a leg to stand on ethically, factually, or legally, and fuck you, asshole, for the Fox News cheap shot. If they happen to agree with me, it’s because they happened to avoid the anti-cop, race-baiting biases infecting you and much of the media. I don’t take my views from anyone, ass, and I had no bias in this case at all, except the bias against pre-judging a case and assuming a public servant is a racist killer based on twisted facts and the color of his skin.”
6. The repeated argument that Wilson should have tried to wound or use non-deadly force if Brown was charging him is another theme that should have been shut down by competent journalists immediately. Police are trained to stop assailants, armed or unarmed, by firing at their center. It is estimated that only 20% of police shots hit their targets. The second-guessing is arrogance, irresponsible and disrespectful: police have a dangerous job, and activists who have never faced similar threats in their life are telling an imperiled officer and his profession what the correct response should be. I am certain that one of the results of this shooting will be that police departments will be under pressure to put in place policies mandating non-lethal responses when an enraged 300 pound man is charging. Officers will die as a result.
7. On the Legal Ethics Forum, one of the giants of the legal ethics field, Monroe Freedman, has argued that McCulluch had a conflict of interest:
“McCulloch’s most serious ethical violation, which was his conflict of interest in participating in the indictment of a police officer in his own jurisdiction. An unethical conflict of interest occurs when there is a risk that the lawyer’s representation of a client will be materially and adversely affected by the lawyer’s own interest or by the lawyer’s duties to a current client, a former client, or a third person. The forbidden conflict of interest exists even though it’s not probable that any adverse effect will in fact occur. Therefore, there’s an unethical conflict of interest when a prosecutor participates in the indictment of a police officer in his or her own jurisdiction, because the prosecutor has a personal and professional need to maintain good relations with the police, who have been known to publicly threaten not to cooperate with a prosecutor thereafter if a fellow officer is indicted. A prosecutor in that position should therefore obtain the appointment of a special prosecutor who does not herself have a conflict of interest.”
Some agree with him. I sure don’t. Freedman was one of the prominent critics of Angela Corey, the Special Prosecutor appointed to decide if George Zimmerman should be prosecuted. The evidence wasn’t there: she prosecuted anyway, dictating a virtual show trial. That’s the likely result with a special prosecutor. Freedman’s conflict of interest doesn’t exist: the client (the government, on behalf of the public) has waived it, and the prosecutor reasonably believes that it will not result in a failure to do his job fairly.) The imagined conflict, it seems to me, would prevent any prosecutor from handling any case in which the police were involved, which is to say, most of them.
8. Another commentator in the same thread, the professor, legal ethicist and text-book author Richard Zitrin says