Candor And Cynicism

Clearly, as far as I am concerned, candor is Judge Kopf’s long suit, with little to nothing else a distant second.

Too much of a good thing sometimes, though?  Iohno.

Candor breeds candor, I guess.  And it’s not pretty.  Discussing the recent Ferguson goings on, not just the judge but a number of lawyers chime in, with one main subject of discussion not lamentations concerning a dead teenager, nor dismay about the civil unrest the whole thing – our “process”, let’s face it – has sparked.

No.  These are secondary concerns at best.

At least one main thing is, how will this affect Eric Holder’s political career and standing?  What’s the right thing for him to do, career-wise?  How does he balance the interests of two warring factions in such a way that he comes out on top?

Think I’m kidding?

From the Judge’s main post, one of two questions he finds interesting:

1.  Is the failure of the Missouri grand jury to indict Mr. Wilson (a) a godsend for Attorney General Holder or (b) a curse for Attorney General Holder?

It’s a profoundly cynical question.  The idea is that it’s a “godsend” if Holder can successfully make political hay out of his own department’s prosecution after the state officials don’t prosecute, solidify his boss’ political base, and so forth.  It’s a curse if it fails at that, while upsetting the other side, of course.  You know, the police, prosecutors, whatnot.

Kind of appalling.  An updated and far more cynical version of fiddling while Rome burns.  At least Nero had the excuse of being crazy.

“Simple lawyer” BDC responds with calculation:

I agree with shg that the answer to the first question is “curse”. If the Missouri grand jury had indicted, then Holder could simply point to the ensuing state prosecution as a reason for not going forward with seeking a federal indictment. Essentially, it would have given Holder an “easy out”, especially if a state court trial had ended with a guilty verdict. Now, no matter what Holder does will subject him to criticism.

Prosecutor-professor Bill Otis, highly credentialed (Stanford!!) and not to be out-cynicaled by anyone:

1. The state grand jury did no favors to Eric Holder because it left him with a lousy choice: Either cater to the President’s political base (which needs goosing, given the last election) by returning an indictment; or go with the facts, which pretty clearly establish that Darren Wilson did what any of us would have done in the same dire circumstances.

I am no fan of Mr. Holder, but I think it likely that he has enough integrity to go with the latter. To make this less painful, however, I suspect that this will get done the same way Bowe Bergdahl is getting dealt with, to wit, keep saying “we’re gathering more facts” until the clock runs out on January 20, 2017.

And former “sex crimes prosecutor” Roger:

For me, the case in Ferguson falls in that category of legally sufficient but likely to result in a defense verdict. I’ve read as much of the transcript as I could get through so far, and it seems clear that (1) there is probable cause and (2) if the jury chose to believe witnesses they would be legally entitled to believe the evidence would be sufficient to sustain the conviction but (3) knowing what I know about St. Louis County juries, the odds of them convicting a nice young officer for shooting a 290-pound dope-smoking strong-arm robber who grabbed the cop’s gun after telling the cop to STFU when nicely asked to get out of the middle of the road are roughly a million to one against. I understand why the prosecutor didn’t want to press charges in a case with a likely twofer of pissing off the cops he relies on for all of his other cases and losing at trial. I think it was BS that he hid behind a faux grand jury proceeding rather than owning the decision himself, and if I were the feds I would be inclined to pursue the case, but I don’t expect that to happen.

I guess dead teenagers and violence in the streets boil down to facile characterizations (“dope-smoking strong arm robber blah blah) and crass political calculation (a “twofer” of “pissing off the cops blah blah) when you’re a “sex crimes prosecutor”.

And Greenfield’s over there – and, mixed bag that he is, first he takes the Judge’s bait:

The first question strikes me as easier to answer. The “no true bill” from the Ferguson grand jury puts the problem squarely on AG Holder’s plate. If he refuses to present, based upon the grand jury outcome, he then ties his integrity to McCulloch’s presentment. If he pursues a civil rights indictment, as in Rodney King, he will be tarred as doing so because of racial affinity, cop hating and/or ignoring the evidence. But either way, it’s a curse to Holder.

Then, with respect to a fairly easy second question – regarding whether a prosecutor should prosecute when he only has “probable cause” or whether he needs enough for a conviction – he’s flat wrong:

The second question is harder for me, as I’ve never been a prosecutor, and I don’t know the “real” evidence available in the case. The best response I can offer is that if, as a “straight up” prosecutor, I believed that there was probable cause to pursue a civil rights violation, I would do so, do so zealously, obtain the indictment in the ordinary course and try the case with the same zeal as any other, within the bounds of the law.

Greenfield likes his “I argue either side, just pay me, wind me up and watch me go” image.  Or self image, at any rate.

Gamso’s a lot better on that question:

If I’m convinced that the evidence is insufficient for a conviction then I can’t try to indict because I would be attempting to obtain a conviction of someone I believed to be legally innocent. That would be mere harassment, a clear violation of the prosecutor’s duty to do justice.

But still not quite.

A prosecutor who prosecutes believing that he doesn’t have sufficient evidence to convict violates the target’s right to due process of law, not just his “duty to do justice”.

Is that distinction important?  Oh yes.  One way the target has a remedy; the other way he doesn’t.

Ugh.  Our profession is in serious trouble.  But I guess we already knew that.


1 Comment

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One response to “Candor And Cynicism

  1. HonestAbe

    The verdict was much as I expected. Certainly Brown’s status in the community is not what I would call upstanding not did he demonstrate sound decision-making skills when confronting Officer Wilson but I tend to set the bar higher when evaluating professional law enforcement personnel. Many might say I am out of my mind but when Wilson pulled the trigger (some twelve or more time), he clearly didn’t think about the repercussions. For example, emptying his handgun indicates either panic or a clear intent to kill. But firing that many rounds jeopardizes bystanders down range, subjects his department to scrutiny, places Holder in a bind, upends the community spirit, and subjects local businesses to looting, etc. Clearly, it appears that police officers are sent onto the streets with little proactive guidance on how to handle situations since shooting out Brown’s legs would have avoided this mess. Unfortunately, lack of leadership in the St. Louis PD has placed an officer at risk, sent the community into chaos, added more fuel to the growing racial concerns, and placed a young man six feet under.


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