Photograph: Scott Olson/Getty Images
Jeffrey Toobin, New Yorker
Criminal procedure—the everyday rules of the road—gets a bad rap. It’s said to be rigid, routine, incapable of accommodating the nuances of human behavior. But, as the atypical grand-jury proceedings in the aftermath of Michael Brown’s death illustrate, there is a great deal to be said for prosecutors following the customary rules of their profession.
To recap the relevant facts: Officer Darren Wilson shot and killed Michael Brown, an unarmed eighteen-year-old man, on August 9, 2014, in Ferguson, Missouri. Robert McCulloch, the local prosecutor, had the authority to charge Wilson with a crime; that’s how the vast majority of prosecutions in the area begin. Instead, McCulloch said that he was going to open a grand-jury investigation and, in an even rarer development, present every scrap of evidence produced in the investigation to the jurors for their consideration.
In Missouri, as elsewhere, grand juries are known as tools of prosecutors. In the famous words of Sol Wachtler, the former chief judge of the New York Court of Appeals, a prosecutor could persuade a grand jury to “indict a ham sandwich” if he wanted to. This is certainly true, but it is true, too, that grand juries retain at least a nominal independence. They usually do what prosecutors want, but they are not legally required to.
In sending Wilson’s case to the grand jury, McCulloch technically turned over to them the decision about whether to prosecute. By submitting all the evidence to the grand jury, he added to the perception that this process represented an independent evaluation of the evidence. But there is little doubt that he remained largely in control of the process; aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment. The standard for such charges—probable cause, or more probable than not—is generally a very easy hurdle. If McCulloch’s lawyers had simply pared down the evidence to that which incriminated Wilson, they would have easily obtained an indictment.
The grand jury chose not to indict Wilson for any crimes in connection with Brown’s death. In a news conference following the decision, McCulloch laid out the evidence that he believed supported the grand jury’s finding. In making the case for Wilson’s innocence, McCulloch cherry-picked the most exculpatory information from what was assembled before the grand jury. The conclusion may even have been correct; based on a preliminary review of the evidence before the grand jury, it’s not clear to me that a trial jury would have found Wilson guilty beyond a reasonable doubt.
But the goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.
Would Wilson have faced charges if he had been treated like every other suspect in McCulloch’s jurisdiction? We’ll never know—and that’s the real shame of this prosecutor’s approach.
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Book Forum
The Saint Louis County grand jury’s decision not to issue an indictment of police officer Darren Wilson in the shooting death of Michael Brown was at once appalling and entirely predictable. Grand juries usually defer to the will of the prosecutors who marshal the cases on their dockets, and Robert McCulloch, the district attorney in the Ferguson case, has a long track record of siding with the police during his twenty-five year career. This, too, can hardly come as a shock given his strong ties to the law enforcement community: McCulloch’s father, brother, nephew, and cousin were all Saint Louis police officers, and his father was killed in an incident involving a black suspect.
Leovy is perhaps best known for starting the Los Angeles Times’ Homicide Report in 2007. Struck by the disparity in how the media covered murder—with high-profile and salacious homicides always treated more prominently than the everyday violence that occurs in the less rich and famous communities of Southern California—Leovy launched a blog that set out to detail in equal terms every killing to take place in metro LA. The project, she reasoned, would bear witness to the idea that no life cut short by violence was worth less than any other.
Leovy writes early in Ghettoside of an acronym taken from the “unwritten code of the Los Angeles Police Department”: NHI—No Human Involved. It’s what some of the cops would say after coming upon the bodies of black men killed by other black men. “It was only the newest shorthand for the idea that murders of blacks somehow didn’t count,” she writes:
At the center of Ghettoside, which takes its title from the term a Watts gang member used to describe his neighborhood, is the 2007 killing of eighteen-year-old Bryant Tennelle. Another young black man gunned Tennelle down as the victim was walking near his home in South Central—not an uncommon occurrence for the time and place. What was uncommon was that Tennelle’s father, Wally, was a well-respected homicide detective in the LAPD. Also uncommon was the detective assigned to the case, a determined bulldog of a man named John Skaggs.
White, Republican, and middle-aged at the time of Tennelle’s murder, Skaggs fit the stereotype of a cop who might have written off the shooting as an NHI case. But Skaggs was different. The son of a former homicide detective, he threw himself into his work the way many of his contemporaries didn’t, animated by the belief that every murdered person—black or white, gang member or not—deserved a good detective working on his or her behalf. He knocked on suspects’ doors and took jittery witnesses out for meals—the little things that can produce major investigative breakthroughs over time, and also the little things that his colleagues wouldn’t do in order to wind up homicide investigations in many African-American neighborhoods. That tenacity paid off, and while some LA detectives were solving cases less than half the time, Skaggs tried to keep his clearance rate at 80 percent or higher. He dismissed detectives who couldn’t keep up as “40 percenters.”
No spoiler alert should be required here to note that Skaggs and his dogged team of partners and subordinates solve the case. It turns out that Bryant Tennelle’s killers mistook him for a rival gang member, even though he had no gang affiliations at all—he was simply wearing the wrong hat as the wrong group of people drove by. It’s a tragedy, but the grander tragedy driving Ghettoside—and the reason it’s not to be overlooked or treated as just another true-crime chronicle—is Leovy’s reminder that “where the criminal justice system fails to respond vigorously to violent injury and death, homicide becomes endemic.” As a result of this malign neglect, “black America has not benefited from what Max Weber called a state monopoly on violence—the government’s exclusive right to exercise legitimate force,” she writes. “A monopoly provides citizens with legal autonomy, the liberating knowledge that the government will pursue anyone who violates their personal safety. But slavery, Jim Crow, and conditions across much of black America for generations after worked against the formation of such a monopoly. Since personal violence inevitably flares where the state’s monopoly is absent, this situation results in the deaths of thousands of Americans each year.”
In other words, America’s black-on-black crime problem isn’t going to be solved by black boys pulling up their pants or refraining from using the N-word or any of the other condescending solutions cable news pundits have eagerly urged upon the monolithic “black community” of their feverish imagining. Our justice system can prevent blacks killing blacks in the same way that it prevents whites killing whites: by investing time, money, and police resources into proving that black people are valuable to our society....Unfortunately, such a commitment is expensive and arduous, and it requires white Americans to admit that [it is necessary if we are to achieve a 'post-racial' society].
Cord Jefferson is a writer living in Los Angeles.
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The Verdict From Ferguson: Put Video Cameras on Cops
Bloomberg BusinessWeek
A St. Louis County, Mo., grand jury’s decision on Monday not to indict Darren Wilson, a white police officer in the nearby town of Ferguson who shot and killed Michael Brown, an unarmed black American, reignited national debate about race relations and law enforcement. It also underscored the wisdom of a relatively simple reform: putting video cameras on cops.
Brown’s parents, to their great credit, urged an alternative to looting stores and throwing rocks at the police. They called for peaceful protest and a sensible change in police procedure–namely, a move to equip street officers with tiny video cameras that would record interactions with citizens, including criminal suspects.
If Darren Wilson had worn such a camera, we might know whether Michael Brown was shot with his hands raised in an effort to surrender, as some witnesses recounted, or attacked Wilson, as prosecutors apparently concluded. The Police Foundation, a nonprofit research group, last year published the results of an impressive study showing that use of body-worn video cameras in one California city “was associated with dramatic reductions in use-of-force and complaints against officers.”
The study was overseen by Tony Farrar, the empirically-minded police chief of Rialto, Calif.—pop. 100,000—and Barak Ariel, a Ph.D. researcher affiliated with Cambridge University in the U.K. The year-long randomized, controlled trial was the first formal evaluation of video cameras worn by police on patrol, according to the foundation.
Half of Rialto’s officers on every shift were assigned wearable cameras that could be attached to their uniforms or sunglasses. ”The findings suggest more than a 50 percent reduction in the total number of incidents of use-of-force compared to control conditions,” according to the study. Moreover, Rialto citizens lodged about one-tenth the number of complaints about police conduct during the study period as they did during the prior 12 months.
Some police officers might reflexively resist video cameras. The way to overcome that resistance is to point out that if Ferguson’s Officer Wilson had worn one, his claim that he felt threatened could be reliably corroborated. Police conduct (or misconduct) is now frequently captured by cell phone video recorded by witnesses, who may or may not seek to memorialize events in an accurate way. If the police themselves do the recording systematically—as some departments already do with dashboard-mounted cameras in patrol cars—everyone would have a more complete version of disputed events.
Even better, the presence of cameras might deter the next Ferguson-style police shooting in the first place.
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Book Forum
The Saint Louis County grand jury’s decision not to issue an indictment of police officer Darren Wilson in the shooting death of Michael Brown was at once appalling and entirely predictable. Grand juries usually defer to the will of the prosecutors who marshal the cases on their dockets, and Robert McCulloch, the district attorney in the Ferguson case, has a long track record of siding with the police during his twenty-five year career. This, too, can hardly come as a shock given his strong ties to the law enforcement community: McCulloch’s father, brother, nephew, and cousin were all Saint Louis police officers, and his father was killed in an incident involving a black suspect.
But while the formal legal system remains largely indifferent ...[when right-wing] commentators are confronted with a case such as Ferguson, ....they try to shift the debate to new ground entirely, citing the alleged epidemic of black-on-black crime. Here, for example, is how former New York City mayor Rudolph Giuliani grandstanded before the cameras on Fox & Friends the day that the grand jury’s announcement came down: “The danger to a black child in America is not a white police officer,” he declared on an all-white panel. “That’s going to happen less than 1 percent of the time. The danger to a black child—if it was my child—the danger is another black.” He went on to advance this absurd claim for good measure: “There is virtually no homicide in the white community.”
Likewise, after George Zimmerman was acquitted for killing Trayvon Martin in 2013, a factoid distributed widely on conservative social media claimed, “In the 513 days between Trayvon dying, and today’s verdict, 11,106 African-Americans have been murdered by other African-Americans.” The fact-checking website Politifact discovered that the tidbit was “mostly false,” the apparent result of some shoddy calculations using crime statistics that were almost a decade old. But for many Americans, the point stood: Whites provoked by racial bias to kill black people is a non-issue when compared to the real problem of blacks killing other blacks.
This is the misguided racial zeitgeist into which veteran journalist Jill Leovy releases her powerful first book, Ghettoside, an in-depth account of a South Los Angeles murder and its subsequent investigation. Though she focuses on a single homicide in a small swath of the city, Leovy uses the narrative in Ghettoside to examine a host of larger questions about police conduct, violence, and racism in America. The result is a true-crime book that leaves the reader haunted not by its cast of criminals but by the society in which those criminals operate.Leovy is perhaps best known for starting the Los Angeles Times’ Homicide Report in 2007. Struck by the disparity in how the media covered murder—with high-profile and salacious homicides always treated more prominently than the everyday violence that occurs in the less rich and famous communities of Southern California—Leovy launched a blog that set out to detail in equal terms every killing to take place in metro LA. The project, she reasoned, would bear witness to the idea that no life cut short by violence was worth less than any other.
Leovy writes early in Ghettoside of an acronym taken from the “unwritten code of the Los Angeles Police Department”: NHI—No Human Involved. It’s what some of the cops would say after coming upon the bodies of black men killed by other black men. “It was only the newest shorthand for the idea that murders of blacks somehow didn’t count,” she writes:
“Nigger’s life cheap now,” a white Tennessean offered during Reconstruction, when asked to explain why black-on-black killing drew so little notice.
In short, for more than a century now, America has turned a blind eye toward murder in black communities, suggesting that many in the white mainstream regard the so-called black-on-black crime problem as something of a solution. (Indeed, Leovy caught one LA officer calling a successfully prosecuted gang killing “two for the price of one,” as one man was going to jail and the other was dead.) African-Americans caught stealing property or possessing marijuana are prosecuted to the fullest extent of the law, but justice for murdered black people takes a back seat in most urban law-enforcement operations. The media won’t cover homicides in black communities—Leovy tells of parents literally begging journalists to write about their dead sons—and many cops approach these cases sluggishly, if at all. “In Jim Crow Mississippi,” Leovy writes, “killers of black people were convicted at a rate that was only a little lower than the rate that prevailed a half century later in L.A.—30 percent then versus about 36 percent in Los Angeles County in the early 1990s.”A congressional witness a few years later reported that black men in Louisiana were killed and “a simple mention is made of it, perhaps orally or in print, and nothing is done. There is no investigation made.” A late-nineteenth-century Louisiana newspaper editorial said, “If negroes continue to slaughter each other, we will have to conclude that Providence has chosen to exterminate them in this way.” . . . An Alabama sheriff of the era was more concise: “One less nigger,” he said.
At the center of Ghettoside, which takes its title from the term a Watts gang member used to describe his neighborhood, is the 2007 killing of eighteen-year-old Bryant Tennelle. Another young black man gunned Tennelle down as the victim was walking near his home in South Central—not an uncommon occurrence for the time and place. What was uncommon was that Tennelle’s father, Wally, was a well-respected homicide detective in the LAPD. Also uncommon was the detective assigned to the case, a determined bulldog of a man named John Skaggs.
White, Republican, and middle-aged at the time of Tennelle’s murder, Skaggs fit the stereotype of a cop who might have written off the shooting as an NHI case. But Skaggs was different. The son of a former homicide detective, he threw himself into his work the way many of his contemporaries didn’t, animated by the belief that every murdered person—black or white, gang member or not—deserved a good detective working on his or her behalf. He knocked on suspects’ doors and took jittery witnesses out for meals—the little things that can produce major investigative breakthroughs over time, and also the little things that his colleagues wouldn’t do in order to wind up homicide investigations in many African-American neighborhoods. That tenacity paid off, and while some LA detectives were solving cases less than half the time, Skaggs tried to keep his clearance rate at 80 percent or higher. He dismissed detectives who couldn’t keep up as “40 percenters.”
No spoiler alert should be required here to note that Skaggs and his dogged team of partners and subordinates solve the case. It turns out that Bryant Tennelle’s killers mistook him for a rival gang member, even though he had no gang affiliations at all—he was simply wearing the wrong hat as the wrong group of people drove by. It’s a tragedy, but the grander tragedy driving Ghettoside—and the reason it’s not to be overlooked or treated as just another true-crime chronicle—is Leovy’s reminder that “where the criminal justice system fails to respond vigorously to violent injury and death, homicide becomes endemic.” As a result of this malign neglect, “black America has not benefited from what Max Weber called a state monopoly on violence—the government’s exclusive right to exercise legitimate force,” she writes. “A monopoly provides citizens with legal autonomy, the liberating knowledge that the government will pursue anyone who violates their personal safety. But slavery, Jim Crow, and conditions across much of black America for generations after worked against the formation of such a monopoly. Since personal violence inevitably flares where the state’s monopoly is absent, this situation results in the deaths of thousands of Americans each year.”
In other words, America’s black-on-black crime problem isn’t going to be solved by black boys pulling up their pants or refraining from using the N-word or any of the other condescending solutions cable news pundits have eagerly urged upon the monolithic “black community” of their feverish imagining. Our justice system can prevent blacks killing blacks in the same way that it prevents whites killing whites: by investing time, money, and police resources into proving that black people are valuable to our society....Unfortunately, such a commitment is expensive and arduous, and it requires white Americans to admit that [it is necessary if we are to achieve a 'post-racial' society].
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Marching on Chestnut Street in Philadelphia
Photograph: Steven M. Falk/AP
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The Verdict From Ferguson: Put Video Cameras on Cops
Bloomberg BusinessWeek
A St. Louis County, Mo., grand jury’s decision on Monday not to indict Darren Wilson, a white police officer in the nearby town of Ferguson who shot and killed Michael Brown, an unarmed black American, reignited national debate about race relations and law enforcement. It also underscored the wisdom of a relatively simple reform: putting video cameras on cops.
Brown’s parents, to their great credit, urged an alternative to looting stores and throwing rocks at the police. They called for peaceful protest and a sensible change in police procedure–namely, a move to equip street officers with tiny video cameras that would record interactions with citizens, including criminal suspects.
If Darren Wilson had worn such a camera, we might know whether Michael Brown was shot with his hands raised in an effort to surrender, as some witnesses recounted, or attacked Wilson, as prosecutors apparently concluded. The Police Foundation, a nonprofit research group, last year published the results of an impressive study showing that use of body-worn video cameras in one California city “was associated with dramatic reductions in use-of-force and complaints against officers.”
The study was overseen by Tony Farrar, the empirically-minded police chief of Rialto, Calif.—pop. 100,000—and Barak Ariel, a Ph.D. researcher affiliated with Cambridge University in the U.K. The year-long randomized, controlled trial was the first formal evaluation of video cameras worn by police on patrol, according to the foundation.
Half of Rialto’s officers on every shift were assigned wearable cameras that could be attached to their uniforms or sunglasses. ”The findings suggest more than a 50 percent reduction in the total number of incidents of use-of-force compared to control conditions,” according to the study. Moreover, Rialto citizens lodged about one-tenth the number of complaints about police conduct during the study period as they did during the prior 12 months.
Some police officers might reflexively resist video cameras. The way to overcome that resistance is to point out that if Ferguson’s Officer Wilson had worn one, his claim that he felt threatened could be reliably corroborated. Police conduct (or misconduct) is now frequently captured by cell phone video recorded by witnesses, who may or may not seek to memorialize events in an accurate way. If the police themselves do the recording systematically—as some departments already do with dashboard-mounted cameras in patrol cars—everyone would have a more complete version of disputed events.
Even better, the presence of cameras might deter the next Ferguson-style police shooting in the first place.
