PBS NewsHour “read and analyzed more than 500 pages of witness testimony and compared each statement to those given by [officer Darren] Wilson,” pulling together the results in this chart, which illuminates points where the witness testimony tended to help Wilson’s defense and where it did not; perhaps most surprising is how many questions he was apparently not asked. Prosecutor Robert McCullough managed the grand jury proceedings almost in the manner of a defense lawyer for the man facing charges, a strategy extremely unlikely to be repeated in the great majority of grand jury proceedings where the accused is not a police officer [Jacob Sullum] And Conor Friedersdorf notes that if you were looking for poster cases of wrongful use of lethal force for which police were not held accountable — even when there was video or other strong documentary evidence — many other cases would stand higher on the list than that of Michael Brown.
- “As Ferguson waits, some lessons from the Rodney King riots” [Radley Balko] “ACLU wins federal court orders on right to video police in Ferguson, elsewhere” [St. Louis Post-Dispatch]
- “What charges could the Michael Brown grand jury consider, if they choose to indict?” [Paul Cassell, Volokh; related on Missouri jury instructions regarding deadly force by police, Robert VerBruggen/Real Clear Policy]
- Quick links: things this site has published on Ferguson, on police militarization, on police issues generally;
- Interview with University of Illinois lawprof Andrew Leipold on grand jury process [U of I] A reminder about the surprisingly high error rates of eyewitness testimony [Balko]
- “Judges propose wide reform of St. Louis County’s municipal courts” [StL; related, holiday warrant forgiveness] Municipal court fines and fees: “Why we need to fix St. Louis County” [Radley Balko, related (Better Together report), earlier here, here from Balko, etc.]
- “The hurdles for indicting or convicting a uniformed officer are high, for many reasons.” Survey of police deadly force issue [L.A. Times] Police forces have strayed far from the “Peel Principles” for which London police were so admired [Tuccille, Reason]
- Not much. “Whatever Happened To The White House Police Militarization Review?” [Evan McMorris-Santoro, BuzzFeed]
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility moves against a dubious practice. “The demand letters are effective at scaring consumers because they are sent on prosecutor letterhead and contain threats of criminal prosecution — threats that no other debt collector could make.” However, they mobilize the prosecutor’s apparent public authority on behalf of legal threats which typically the prosecutor has not reviewed individually exercising professional judgment, and they can deceive debtors about the legal status of their claimed obligation. [Deepak Gupta, Consumer Law & Policy; earlier]
- New Cato paper finds little evidence that pot legalization in Colorado has much affected rates of use, traffic safety, violent crime, ER visits, health, education outcomes [Jeffrey Miron working paper via Jacob Sullum]
- Ferguson narrative changes as new evidence supports officer’s story on Michael Brown confrontation [Washington Post, Marc Ambinder/The Week, New Republic]
- Why Obama was smart to choose Loretta Lynch as AG rather than knocking Republicans’ cap off with a pick like Thomas Perez [Cato; Todd Gaziano on confirmation questions]
- Plea bargaining system: “Why Innocent People Plead Guilty” [Judge Jed Rakoff, New York Review of Books]
- “There’s not much to do about catcalling, unless you’re willing to see a lot more minority men hassled by the police” [Kay Hymowitz, Time] Peer pressure seems to be a factor in restraining it [Andrew Sullivan] The “practice of catcalling is most taboo among members of the upper classes.” [Conor Friedersdorf, The Atlantic, earlier]
- San Diego says it retains discretion over when to release cop camera footage [Radley Balko] How body cameras can vindicate cops [same]
- Elderly Wisconsin man “was never considered dangerous, [but] was known to be argumentative,” so send in the armored vehicle [Kevin Underhill, Lowering the Bar, related] “The [SWAT-raided] Tibetan monks were here on a peace mission, for Christ’s sake. Well, not for Christ’s sake, but you know what I mean.” [same] Sen. Coburn quotes Madison: standing military force with overgrown executive will not long be safe companion to liberty [WSJ]
Justice Scalia on the rule of lenity in U.S. v. Santos, 2008:
This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.
Vikrant Reddy (footnotes omitted):
Although this understanding should be perfectly ordinary, the application of the rule of lenity has in fact begun to erode dramatically in recent years. This has happened in concert with a troubling phenomenon: the dramatic growth of criminal law in a variety of non-traditional arenas, generally involving freely agreed-upon exchanges between adults. These “business crimes” (which include such things as harvesting oysters at the wrong time of day, improperly thrashing pecan trees, or even mislabeling citrus fruit) are increasingly exempt from the ordinary application of the rule of lenity in the minds of many judges and prosecutors.
Tim Lynch of the Cato Institute has even argued that the ordinary application of the rule of lenity “has been turned on its head.” He has observed that “When an ordinary criminal statute is ambiguous, the courts give the benefit of the doubt to the accused, but when a regulatory provision is ambiguous, the benefit of the doubt is given to the prosecutor.”11 What is troubling is that while defendants found guilty of these business crimes are subject to criminal sanctions—including prison—they increasingly do not enjoy the fundamental due process protections that are supposed to be guaranteed by the rule of lenity.
His paper for the Texas Public Policy Foundation recommends:
• Texas should formally codify the rule of lenity in the state code.
• The rule of lenity is a partial solution to a larger problem — the overall trend towards overcriminalization in American life.
• Fewer “business crimes” would mean fewer crimes for whichthe rule of lenity is disregarded.
- Six L.A. County sheriff workers get prison for obstructing jail probe [L.A. Times, earlier]
- More thoughts on pros and cons of police cameras [Howard Wasserman/Prawfs, Scott Greenfield]
- Equal time: Heather Mac Donald’s perspective on Ferguson, policing, and race food for thought even if different from ours [City Journal; our earlier coverage of Ferguson]
- “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies” [Volokh]
- How much criminal culpability for battered women when their violent partners harm children? [BuzzFeed]
- If Stephen Colbert broke NYC’s wacky knife law on the air, all the more reason to reform it [Village Voice (link fixed now), earlier]
- Details of additional charges in billion-dollar Department of Justice case against FedEx for not policing contents of its packages [WSJ, earlier]
- “Mississippi accused do time for years with no indictment for a crime” [Jerry Mitchell, Clarion-Ledger; Scott Greenfield]
- Petty fines/fees, cont’d: the many ways to rack up municipal court fees in Ferguson and St. Louis County [Julie Lurie and Katie Rose Quandt, Mother Jones; earlier here and here] St. Louis suburbs with now-familiar names agree to traffic-cam settlement [KMOV]
- Judge rules police entitled to SWAT raid of private home over satirical Twitter account “impersonating” Peoria mayor [Guardian, earlier]
- Plea bargaining and excessive prosecutorial power [The Economist via Alexander Cohen, Atlas Society]
- Radley Balko remembers policing expert and former San Jose police chief Joseph McNamara;
- “SEC ‘Gag Orders': Does Settling in Silence Advance the Public Interest?” [Gary Matsko, WLF, cf. Toyota prosecution deal; related, Greenfield]
- Press 3 to confiscate his gun: New California law lets exes, in-laws, vengeful former roommates, or cops disarm individual without notice or hearing [Jacob Sullum, Sacramento Bee] More: Andrew Sullivan.
- “Shaneen Allen’s prosecutor might be having second thoughts” [Radley Balko, earlier] Sequel: Indeed.
- “If you get a parking ticket, you are guilty until you have proven yourself innocent …. And that’s worked well for us.” — “senior” Washington, D.C. government official [Washington Post quoting inspector general report; also includes details on traffic camera protocols]
- Not an Onion story: Eleventh Circuit chides use of SWAT methods in Florida barber shop inspections [ABA Journal (“It’s a pretty big book, I’m pretty sure I can find something in here to take you to jail for”), Volokh, Balko, Greenfield] Militarized cop gear is bad, routinized use of SWAT tactics is worse [Jacob Sullum]
- New England Innocence Project looking at several shaken-baby cases [Boston Herald, background]
- Innocence commissions like North Carolina’s not a big budgetary line item as government programs go, alternatives may cost more [A. Barton Hinkle]
- New evidence continues to emerge in Ferguson police shooting, but is nation still listening? [Scott Greenfield]
- Prosecutors arrayed as organized pressure group is very bad idea to begin with, and more so when goal is to shrink citizens’ rights [AP on “Prosecutors Against Gun Violence”; Robert H. Jackson on prosecutors’ power and role in society]
- Enviro activists unlawfully block coal ship, Massachusetts prosecutor expresses approval by dropping charges [James Taranto, Jacob Gershman/WSJ Law Blog, ABA Journal]
- Unfortunately-named Mr. Threatt charged with “robbery that happened while he was in jail” [Baltimore Sun via @amyalkon]
- “How conservative, tough-on-crime Utah reined in police militarization” [Evan McMorris-Santoro, BuzzFeed] More: What if we needed it someday? San Diego Unified School District defends acquisition of armored vehicle [inewsource.org] And Senate hearing [AP]
- “Machine-based traffic-ticketing systems are running amok” [David Kravets, ArsTechnica]
- Thanks, Fraternal Order of Police, for protecting jobs of rogue Philadelphia cops who could cost taxpayers millions [Ed Krayewski; related earlier]
- Study: returning from 6- to 12-person juries could iron out many racial anomalies at trial [Anwar et al, Tabarrok]
- Courts can help curb overcriminalization by revitalizing rule of lenity, mens rea requirement [Steven Smith]