Ruminations of a Red Dirt Hussy

November 30, 2014

Oh, please. It’s just a grand jury.

First, to ward off nasty comments, I have to tell you that I don’t think all law enforcement officers are gun happy thugs. As a matter of fact, I don’t know if any of them are. They have a difficult job, and most of them do it well. But the Tulsa World reported these facts about fatalities resulting from lethal force by Tulsa police officers:

  • The number has tripled since 2009.
  • 109 have been documented since 2007.
  • 108 of the 109 were deemed to be justified.
  • Of the 109 instances, only one resulted in charges. Oddly enough, that’s the one ruled unjustified.
  • Blacks, who make up 18% of the fatalities, comprise 7% of the population.
  • In 2014, 21 people have died at the hands of TPD officers.
  • Attacks on police officers have declined 30%, but the number of people killed has risen and keeps rising.

To be fair, other, just as important facts about those fatalities exist:

  • Most of the people shot had weapons, whether it be knife, gun, or car.
  • Many of the police officers involved suffered critical injuries.
  • 3 police officers have been killed since 2012.

And shit happens

About 5 a.m. Sept. 2, near Gilcrease and I-244, I drove by a small stone house surrounded by yards of yellow crime scene tape and 5 police cars. I didn’t stop, because, you know, that would have been gawky, but by mid-morning I knew three police officers had shot and killed a man with a knife who was 20 feet away from them and bleeding profusely from a self-inflicted knife wound to the jugular vein.

And they didn’t just shoot. They shot to kill. According to a Tulsa World article (27 Oct. 2014), 18 shots were fired, and 8 found their target—one each in the left chin, the upper left chest, the left part of his back, and the back of his left leg, and 2 in his right chest.

Gee, guys. You reckon he’s dead yet? They shot him 8 times. But, well, it was justified. Why?

They were afraid he might threaten pedestrians. Surrounded by law enforcement officers, 5 police cars, and other barriers. On Gilcrease Museum Drive. Before dawn. Bleeding profusely. A big threat. Most people could’ve outrun him with both legs in a cast. And what happened to shooting somebody in the leg? That would at least slow his progress. Oh. Wait. They did. Must have been somewhere between bullet two and bullet eight. Or, despite a shattered femur, he continued to advance. Toward crime scene barriers. Toward a fleet of police cars. Toward a half dozen people with guns who had already proved they would use them. While bleeding from the jugular.

And then there’s Ferguson, where shit just keeps happening

We’ll never know exactly the events surrounding the Ferguson, Missouri, shooting death of unarmed 18-year-old Michael Brown by Officer Darren Wilson. The grand jury failed to indict, citing “conflicting information” from eye witnesses as one reason. And boy was it ever. Some of the people who had spoken on camera or to FBI agents prior to appearing before the grand jury weren’t even at the scene of the shooting. Those witnesses were challenged aggressively by the prosecution, as I’m sure they should have been.

Maybe the grand jury made the only decision they felt they could.

But that doesn’t mean the prosecutor’s office didn’t purposely seek to subvert the grand jury process.

An article from the New Republic lays it out most clearly. According to Noam Scheiber: “The first [of DA McCulloch’s options] would have been simply to decline to indict Wilson for the reasons McCulloch’s defenders posit—that the law would have made it very difficult to secure a conviction. The second . . . would have been to obtain an indictment against Wilson from the grand jury, which McCulloch almost certainly could have done had he sought one. But McCulloch chose a third option—using the grand jury process to establish Wilson’s innocence—which is deeply unfair.” [Emphasis added]

In support of Scheiber’s position, Judd Legum, in Think Progress, cited Supreme Court Justice Antonin Scalia from 1992: “It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

Here are the instructions McCullough issued to the grand jury:[You] must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or a true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his [sic], in the evidence. [Emphasis mine]

Do what now?

Precedent is just that: precedent. Black’s Law Dictionary defines it as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.” Established 1992, that precedent should have been followed in the grand jury proceedings. But it wasn’t.

And remember those “conflicting statements”? They were, indeed. And the witnesses were rightly challenged. You know who wasn’t? Darren Wilson. He testified unchallenged for hours, early in the grand jury proceedings. He was depicted as some kind of Horton-esque character: “I meant what I said, and I said what I meant./A policeman is faithful one hundred percent!” Apparently, Darren Wilson was straight as a plumb line, consistent from his first statement to his last. But how would we know that?

We don’t. After the shooting, he left the scene, alone, drove back to the station house, washed the blood off his hands, put a gun—presumably his own—into an evidence bag, and returned to the scene. When he was finally questioned—by local officers—no one thought to tape it. Really?

According to the New York Times, “The officer’s testimony, delivered without the cross-examination of a trial in the earliest phase of the three-month inquiry, was the only direct account of the fatal encounter. It appeared to form the spine of a narrative that unfolded before the jurors over three months, buttressed, the prosecutors said, by the most credible witnesses, forensic evidence and three autopsies.”

Further strengthening that narrative was the action of an assistant prosecutor, who distributed a document containing a Missouri law which stated that an officer could use whatever force he thought necessary “to effect the arrest [of a suspect] or present the escape [of that suspect] from custody.” So, if you run from the police, you can be shot. Seems kind of harsh, doesn’t it? You know who else thought it harsh?

The Supreme Court, which, in 1985, ruled the law unconstitutional.

Was the ADA’s error corrected? Why, of course.

Weeks later. When the grand jury was preparing to decide on the indictment. When the ADA knew her ass was on the line.

Then she presented them with another document and mangled her way through an explanation of what had happened and how this law was different from that law, which was really just, you know semantics, because while “law is codified and written in books and they’re called statutes, [the] courts interpret those statutes.” And, she continued, not all of the original document was wrong, but parts of it were.

That, my friends, was the height of the clarity of her explanation. All downhill from there.

When a juror asked if Supreme Court decisions overrode Missouri law, rather than just saying, “Yes,” the assistant prosecutor said, “As far as you need to know, don’t worry about that.” Uh-huh. Right. Do not worry about that whaddyacallit, constitution thingy.

I don’t know if Darren Wilson should have been indicted. Clearly, the Ferguson prosecutor’s office could use a serious overhaul. And a dose of–um–what’s it called? Oh, yeah. Integrity. But the upshot of everything that happened there is that one more kid is dead. A kid who stole some cigarillos from a convenience store. One more young man who was some mother’s child. Some father’s pride. A brother, a friend. Full of promise, regardless of a poor choice he made on August 9.

Sources cited:

The Atlantic: “I Just Did My Job.”

http://www.theatlantic.com/politics/archive/2014/11/i-just-did-my-job/383227/

Part of Darren Wilson’s testimony

http://www.scribd.com/doc/248128427/Darren-Wilson-Testimony-Snippet

NPR: “In Darren Wilson’s Testimony, Familiar Themes about Black Men.”

http://www.npr.org/blogs/codeswitch/2014/11/26/366788918/in-darren-wilsons-testimony-familiar-themes-about-black-men

The Daily Mail: “Explosive Grand Jury Evidence Reveals Aggressive Michael Brown Taunted Darren Wilson.”

http://www.dailymail.co.uk/news/article-2848366/You-p-y-shoot-Explosive-grand-jury-evidence-reveals-aggressive-Michael-Brown-taunted-cop-Darren-Wilson-shot-dead.html

This one, From Mother Jones, contains a huge number of Grand Jury files.

http://apps.stlpublicradio.org/ferguson-project/evidence.html

Slate.com: “Demons and Super-Villains: The Language of Darren Wilson’s Grand Jury Testimony.”

http://www.slate.com/blogs/lexicon_valley/2014/11/25/the_language_of_darren_wilson_s_testimony_close_reading_the_demons_and_supervillains.html

New York Times, “Amid Conflicting Accounts, Trusting Darren Wilson”

http://www.nytimes.com/2014/11/26/us/ferguson-grand-jury-weighed-mass-of-evidence-much-of-it-conflicting.html?_r=0

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