grand jury

The Breonna Taylor Non-Indictments [Updated]

/ Jack Marshall / 19 Comments

We’ll see just how much Facts Don’t Matter in the Breonna Taylor fiasco aftermath. I heard shameless race-huckster Ben Crump speaking on TV, and when he started blathering on about 1619, I changed the channel to a re-run of “The Andy Griffith Show.” As a friend says, memorably but grossly, “There is some shit I won’t eat.” The sentiment is apt here.

The Kentucky grand jury did not indict current and former police officers for the shooting death of Breonna Taylor, though her name has been prominently linked to that of George Floyd and others during the promotion of protests and rioting in the George Floyd Freakout. As with Floyd, there was no evidence of racism in the death of Taylor, other than the fact that the three cops involved are white and she was black. That’s enough for the presumption or racism to stick, as we have learned in other cases, thus “justifying” Crump’s pronouncements.

Taylor, a 26-year-old EMT, was sleeping in her apartment on March 13 when police officers Jonathan Mattingly, Myles Cosgrove  and Brett Hankison, operating with a no-knock warrant that was mistakenly processed, burst in. Taylor’s boyfriend, Kenneth Walker, thinking that the apartment was being invaded, shot at them, and they returned fire. Taylor was accidentally killed by a bullet from Cosgrove’s gun in the crossfire, and five other bullets struck her as well.

Kentucky Attorney General Daniel Cameron held a  press conference after the grand jury’s decision was announced, explaining that because Walker fired first, Cosgrove and Mattingly were “justified in their use of force after having been fired upon.” The result was pre-ordained from the beginning unless prosecutors violated all ethical standards and pushed the jurors to indict the officers for Taylor’s death anyway as a sop to Black Lives Matters and an attempt to stem the violence likely to follow if the officers weren’t sacrificed to the mob.

I, legal experts, and anyone paying attention  doubted that the grand jury would or could return murder indictments on this set of facts. The 12 jurors did return three counts of wanton endangerment in the first degree against Officer Hankison for shooting his gun into the apartment next to Taylor’s, but that is unlikely to calm the fury of those who want to riot on general principles, if you can call “I’m mad as hell and I’m not going to take it any more!” a principle. Continue reading →

“We Understand One Of My Colleagues Raped You. Here, Have A Taco, And Shut Up”

/ Jack Marshall / 21 Comments

taco

Some sadistic and none-too skilled cynic appears to be writing the news, and I don’t appreciate it, especially the news about how our justice system deals with rape.

Felipe Santiago Peralez, a La Joya, Texas police dispatcher, repeatedly assaulted, raped, terrorized,  and forced a woman into performing various sex acts during an “all night invasion of her body” while she was in the custody of the La Joya police department for a misdemeanor probation violation. Even after Peralez’s colleagues and superiors saw the jail security video, they refused to take his victim to a hospital for an examination as required by Texas law for all rape investigations. One of them was  kind enough, she says, to offer her a taco. (It is unknown if she actually ate the taco, or if it was yummy.) An officer also told her that if she breathed a word about what happened, she was liable to go “missing.”

This happened in 2014. The La Joya police chief at the time also saw the video, and reported it to city authorities. As a result, a Hidalgo County grand jury charged Peralez with three counts of civil rights violations and one count of “official oppression”—yes, I would agree that a cop sticking various objects, organic and otherwise, into a confined woman’s vagina without her consent qualifies as “oppression”— and he was sentenced to a whopping 6 months in state jail and 30 days in county jail after a plea bargain.

See? Those Texas types know how to handle rapists with rough, effective frontier justice…none of this lame California sentencing, with a rich kid Stanford swimmer getting just six months because he promises that he’ll devote his life, well, some time anyway, to telling other rich kids not to drink so much that they think unconscious women are blow-up sex dolls. Yup, none of that slap on the wrist nonsense in Rick Perry’s domain! There, a police rapist gets six months AND another month. It serves him right! Don’t mess with Texas!

All of this comes to light in a law suit filed by the victim, referred to as A.R., that names Peralez, the City of La Joya, its former and current police chiefs, its city administrator, several La Joya police officers, the city of Peñitas, its police chief and two more officers there, and asks for 70 million dollars in damages.

I feel like I’m losing my mind. How can an entire community become so corrupt that it would behave this cruelly and unjustly? The police officer who warned A.R. to keep her mouth shut was a woman. The whole story reads like the screenplay of a lurid revenge fantasy like “I Spit On Your Grave,” except that it’s missing the fun part where the victim meticulously tracks down her abusers and tortures them to death in the most ingenious and disgusting ways possible. Of course, it appears that A.R. would have to track down the whole town, including its police force and the grand jury. And the local news media. When the justice system delivers this kind of outrage, isn’t the media supposed to report it, and loudly? Maybe reporters were told that they might go missing too.

Or someone offered them tacos.

The absence of any national reporting on this two-year-old horror is just one of the aspects of the story I find disturbing. Such as… Continue reading →

New Chicago and California Carnage: Can Anything Stop The Ferguson Ethics Train Wreck?

/ Jack Marshall / 85 Comments

Emergency personnel work at the scene of a deadly train derailment, Wednesday, May 13, 2015, in Philadelphia. The Amtrak train, headed to New York City, derailed and crashed in Philadelphia on Tuesday night, killing at least six people and injuring dozens of others. (AP Photo/Patrick Semansky)

…or will it continue to gain speed?

The Ferguson Ethics Train Wreck, created by a deadly collision of a corrupt and racist local law enforcement system in Missouri, a young hoodlum, an irresponsible news media, a sinister lie, and a civil rights and racial spoils conglomerate eager to build on the societal upheaval  it authored in the earlier Trayvon Martin-George Zimmerman Ethics Train Wreck, continues to rip apart the races and and trust in the law enforcement system.

At this point, I don’t see how any police department can do its job.  I don’t see why any black criminal wouldn’t fear being shot for being black; I don’t see how any white police officer can shoot his gun to defend himself without fearing he will be branded a racist killer regardless of the circumstances.

I don’t see how prosecutors can objectively decide whether of not to prosecute in such cases when there will be so much pressure to punish the police and exonerate the victim, who is almost always going to have been engaged in some unlawful conduct and usually resisting arrest. While the train wreck rolls, I don’t see how police can be proactive in preventing crimes, or why criminals, especially black criminals, won’t take full advantage of their reluctance. I don’t see how indicted police officers can get a fair trial.

What I see is all of the above getting worse, and the Federal government doing nothing to stop the train. Continue reading →

Law vs. Ethics: A Snatched Bar Mitzvah Gift, A Leaky AG, An Embarrassing Scoreboard, and”OINK”

/ Jack Marshall / 19 Comments

Oink

I try to keep my legal ethics seminars up-to-the-minute, so while preparing for yesterday’s session with the Appellate Section of the Indiana Bar, I came across a bunch of entertaining stories in which the ethics were a lot clearer than the law, or vice-versa. All of them could and perhaps should sustain separate posts; indeed, I could probably devote the blog entirely to such cases.

Here are my four favorites from the past week’s legal news, involving a mother-son lawsuit, a brazenly unethical attorney general, a college scoreboard named after a crook, and police officer’s sense of humor: Continue reading →

Transparency, Causation, Eggshells, Trust : Seven More Ethics Issues In The Eric Garner Case

/ Jack Marshall / 10 Comments

jigsaw-puzzle-record

1. There is near unanimity in the response to the non-indictment by the Staten Island jury in the Eric Garner case. In light of the graphic video, it is hard to see how there wasn’t probable cause to indict. The coroner verdict of “homicide” would see to provide sufficient evidence all by itself. However, in the absence of the complete record of what the grand jury heard and saw, nobody can be certain that this was a miscarriage of justice. However, given the context of the case and its deleterious impact on faith in the justice system, that is no solace and scant mitigation. As in Ferguson, it is prudent and essential that the public see what the decision was based upon. It is true that those who are determined to see injustice, bias and racism will do so regardless of what the evidence shows–again, as in Ferguson—but the only evidence that has been made public, the various videos and the officer’s testimony–only makes the non-prosecution more suspicious.

2. Can the non-prosecution be justified? If so, the only reason I can see would be lack of proof of causation. Causation is tricky, and  juries get confused about how to analyze it. Since it is fair to assume Daniel Pantaleo did not intend to kill Eric Garner, the issues are a) whether his actions during the arrest were negligent, and b) whether they were the proximate cause of Garner’s death. That his conduct was negligent is not enough to sustain and indictment—that negligence had to be the reason Garner died. Remember, he was not choked to death. The medical examiner ruled that Garner died from a collection of factors: compression on his chest and throat, the position he was forced into, his obesity, weak heart, and asthma, all causing asphyxia.

  • If Pantaleo’s actions alone would not have caused Garner’s death, then it could be legitimately argued that he was not guilty of a crime. The other officers were given immunity for their testimony, which seems like either a bad decision by the district attorney, or intentional sabotage of the case against Pantaleo’s. If it was the collective action of the police that caused Garner’s death, it would be unjust to make Pantaleo the sole officer punished. If some of the testimony from the unchargeable cops made the case that it was another officer, or several, who really caused Garner’s death, that would explain the no indictment result.

In the widely seen video of the arrest, Pantaleo can be seen with his arm around Garner’s neck as Garner is taken to the ground and for some time thereafter, but in watching the video it’s difficult to determine whether Garner was in fact choked. And if he was, it did not appear it was long enough even to render him unconscious, much less kill him…I saw nothing excessive in the manner in which the officers subdued Garner. He was neither beaten with batons nor even punched. To me, it appeared to be a fairly typical scuffle with a large man who had clearly demonstrated his unwillingness to be arrested peacefully.

He misses the point. The question is whether the take-down was excessive for Garner, not some theoretical average arrestee. It is true that with a normal, healthy subject, what the officers did would not typically cause death….but Garner was obviously not normal, nor healthy. He was morbidly obese, and 350 pound middle-aged people tend to have the kinds of heath issues Garner in fact had. Nobody would argue that an elderly woman or a ten-year old girl or someone in a wheelchair should be manhandled like that. Such treatment was negligent for Eric Garner, and the deadly result could and should have been anticipated.

It is true that the officers couldn’t know that Garner had a weak heart and suffered from asthma, but it doesn’t matter: the rule in negligence is that “you take your victim as you find him.” If your negligence is the proximate cause of someone’s death, the fact that it wouldn’t have caused anyone else’s death is no defense. This is the so-called “Egg-shell Skull” rule.

Garner was an egg-shell perp. Continue reading →

Ethically Incoherent Statement Of The Month: Van Jones

/ Jack Marshall / 6 Comments
Van Jones: Reasonable or biased?

Van Jones: Reasonable or biased?

Van Jones, the former White House “czar” of something or other turned smooth-talking racialist warrior on CNN’s “Cross-Fire” and various TV panels, was arguing for frank racial dialogue on ABC’s “This Week With George Stephanopoulos,” in the context of the protests over the Ferguson and Staten Island police grand jury decisions. Sounding reasonable as he often does, Jones then said that what should be an area of agreement is the need for a special prosecutor whenever police misconduct is before a grand jury, noting that it was an “obvious conflict of interest”for prosecutors who work with police as a core element of their job.

I have addressed this argument before, but let me be clearer. This is a conflict of interest that a competent and ethical prosecutor should acknowledge and be able to deal with as the legal ethics rule require. The prosecutor should get a waiver from his or her client—not the victim’s family, but the government the prosecutor represents—and honestly assess whether the fact that the police serve the same client will prevent the prosecutor from being fair and objective. If the answer is yes, then the prosecutor must recuse, but I see no reason why the answer should be yes, if the prosecutor is ethical and worthy of the position.(Jones and other advocates for this “solution” have a bias against prosecutors, whom they view as presumptively unethical.)

Theoretically, every case in which an officer’s credibility determines whether a citizen should be charged poses the same conflict: it is endemic to the prosecutor’s job. Indeed, prosecutors have a very good reason to want bad cops punished and removed from the police force; I’m not at all certain that there is a necessary bias on the part of prosecutors in favor of letting such cops escape legal consequences of their actions. That assumption is based on the assumption that prosecutors don’t care about  justice. Nobody who doesn’t care about justice becomes a prosecutor. Why would they? It is a hard, frustrating job and the pay isn’t anything special.

The strongest argument for a special prosecutor is a different ethical problem, the appearance of impropriety. If the decision to prosecute or not is tainted with suspicion of bias, then the justice system is compromised and breaks down. This is why, for example, it is terrible that the Justice Department, a super-politicized one at that, is supposedly investigating the I.R.S. scandal.

As George moved to another topic, Jones blurted out a final statement that caused me to spit-take a mouthful of coffee. It undermined all of his finely tuned rhetoric about fairness and non-partisan dialogue about race, and exposed, ironically, his own biases. He said;

“If there had been a special prosecutor in Ferguson, we would have had a different result.”

AHA! Continue reading →

Observations on the Eric Garner Non-Indictment

/ Jack Marshall / 44 Comments

The New York Times, among others, reports that the Staten Island grand jury has brought no indictment in the Eric Garner case, in which a large African American man resisted arrest and was brought down by multiple cops, as one, Daniel Pantaleo, used a choke hold to restrain him. After saying that he couldn’t breathe, Garner, who was asthmatic, stopped breathing and died

Observations:

1. I haven’t seen all the evidence, and stipulate that there may be some good reason for the non-indictement that I am not aware of. That aside, however, it certainly seems like this case embodies many of the features that were not present in the death of Michael Brown but that the media and activist narrative attributed to it nonetheless. Garner’s case, in contrast, appears to demonstrate an unwillingness of the law enforcement and justice system to hold police officers accountable for the results of excessive force, even when the result is death.

2. Again, absent some significant evidence that has not been made public, I believe that the video of the fatal arrest, the fact that the choke hold tactic is prohibited by police department policy [ Note: I originally wrote that it was illegal; that was in error, and I apologize for the mistake], and the coroner’s verdict that Garner’s death was a homicide should have been sufficient to mandate the grand jury finding probable cause for at least a charge of negligent homicide.

3. This seems like a result worthy of protest. It is one more reason why activists continuing to use Brown’s death as a rallying point is foolish and wrong. For their purposes, it is a weak case. Garner’s is not. Continue reading →

Eleven Ferguson Ethics Posts In One!

/ Jack Marshall / 34 Comments

APTOPIX Police Shooting Missouri

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: Continue reading →

Verdict: The Grand Jury Process Was Fair and Just

/ Jack Marshall / 39 Comments

abstract door grand jury room

The accusations and complaints about the Darren Wilson grand jury just don’t hold up.

Criminal law professor Paul Cassell consolidates several issues raised in the comments here and in the news media in his excellent analysis in the Volokh Conspiracy, here.

Among the criticisms he addresses…

1. Using a Grand Jury Deviated from Normal Process.
2. The Grand Jury Took Too Long.
3. The Grand Jury Got Too Much Evidence.
4. The Grand Jury Operated in Secret.
5. The Grand Jury Was Exposed to Pressure.
6. The Grand Jury Did Something That Grand Juries Ordinarily Don’t Do.
7. The Grand Jury Misunderstood the Standard of Proof.
8. Robert McCulloch was Biased and Should Have Recused Himself.
9. The Grand Jury Evidence Shouldn’t Be Released.

He also echoes my conclusion about many of the protesters, as he ends his piece with this: Continue reading →

Comment of the Day: “The Ferguson Riots: Of Course.”

/ Jack Marshall / 61 Comments

I know this is a departure: this is my own comment. After I posted it in a fevered state, I decided that it warranted wider exposure.

It comes in response to a jaw-dropping post by one of the most articulate and analytical regulars on Ethics Alarms, who wrote in response to the original essay, this, beginning with a quote from it:

“the activists don’t care, literally don’t care, about [what really happened and why] For them, the issue is simple. A white cop in a racist police department shot an unarmed black teen to death, and that means that there will be riots if he’s not indicted.”

“As there should be.

The moral is – if you don’t want riots, regardless of whether the shooting was justified (if I were on the Grand Jury, then on the scraps of evidence I’ve seen, I’d indict to let it go to trial – just as if I were on the jury of the trial, I’d acquit barring more evidence) – anyway, the moral is – don’t run a racist police department.

Such civil disturbance is the natural countermeasure to tyranny.

I consider such civil disturbance to be a really, really, REALLY bad thing. I think anyone rational does. That means we have a responsibility to make sure that Law Enforcement is not so manifestly, systemically unjust that regardless of the facts in an individual case, riots are inevitable.

What should be is that there’s a justice system that, even though imperfect, is not so horrible that rational people become irrational and desperate. While there will always be some who are “professional rioters”, without a groundswell of popular sentiment behind them, they’re a small bunch of crims easily dealt with.”

After I carefully picked my jaw off the floor, I wrote this, the Comment of the Day, in response… Continue reading →