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Where Have All the Liberals Gone?

People of my generation well remember the haunting anti-war song "Where Have All the Flowers Gone" written by Pete Seeger and popularized by Peter, Paul and Mary. It was running through my head this morning, and got me to thinking, as I mulled the media's coverage of the shooting in Ferguson, Mo.:  Where have all the liberals gone?

In days of yore, when there was a notorious homicide or some other infamous episode, what I used to hear was

--  "No rush to judgment!"

--  "In America, everyone is presumed innocent."

--   "We can't try this case in the press."

--  "No trial by mob."

I'm just not hearing that at all these days. 

Where have all the liberals gone?



As I indicated in a previous comment, I tend to agree that there has been a rush to judgment (i.e., Wilson is guilty of murder, or at least some type of homicide), an elimination of the presumption of innocence (i.e., Wilson is presumed guilty), trying the case in the press (i.e., unarmed Black man gunned down from a distance on a public street by White cop in city whose population is overwhelmingly White and whose police force is overwhelmingly Black), and trial by mob (i.e., pressure exerted by mob violence on prosecutors at state and federal level to vigorously prosecute Wilson now).

But, trying to remain objective, and having given the matter some additional reflection, I asked myself what would have happened if the facts were identical (to those being reported) but Wilson was John Q. Citizen instead of a cop?

IMO,unless Wilson sustained some injury during his encounter with Brown or there was other persuasive evidence supporting a self-defense claim, I believe (based upon over 30 years of first-hand knowledge regarding law enforcement practice) that Wilson would have been arrested at the scene and bail would have been set at a very high amount, if at all. That would have started the clock running -- a mandatory judicial finding of PC within 48 hours ... a prompt presentation to a GJ (or a direct filing of an information) ... a right to a preliminary hearing (if prosecuted by information) within a statutory time period ... etc.

What do you think would have happened if Wilson was John Q., based upon your extensive experience? Am I completely wrong in my assessment? And, if I am not, doesn't it appear as though there is a double-standard at play that is tipping the scales of justice in Wilson's favor?

Tough issues. Tough case. All facts not known by public. Just seeking inteligent, thoughtful commentary given what is undisputed.

paul --

You ask the tough ones. Of course, for intelligent, thoughtful commentary, you'd have to go to Kent.

To the extent my wahoo commentary might be of interest, however, I have some speculation (which is all I could have).

I think it depends on two things: (1) what the police saw at the scene, and (2) their prior experience with the shooting victim.

If they saw a person of normal size at the scene with a broken eye socket (as has been reported), and a huge guy lying dead nearby; and they knew the dead person had been involved in a strong-arm robbery ten minutes before; and they had had prior bad experiences with the victim; and they believed the shooter (based on his demeanor) that the victim had attacked him, then I think the shooter would have been told not to leave town but would not necessarily have been taken into custody.

If any of those things were different, I think it likely that the shooter would have been arrested, though not necessarily held.

I agree that there is a double standard, but that is because, in law and in fact, organized society properly creates a double standard concerning the use of force. Every modern governmental entity I'm aware of reserves the right to use force to the cops and the military; civilians are not allowed to use it except in cases of self-defense. Thus the use of force by the cops is ALWAYS seen through the lens of a double standard, but the duality is necessary and accepted in civilized life.

I believe your hypo, in which the cop becomes a non-cop, needs to be assessed with this fact in mind. The use of force by the police is presumptively valid, while the use of force by persons other than the police is presumptively invalid, with the presumption being subject to rebuttal by an accumulation of unusual and persuasive circumstances.

P.S. Do I know you?


I don't believe we have ever met.

"[T]here is a double standard ... concerning the use of force."

No one likes double standards, especially when it comes to the law. Indeed, the self-defense jury instruction that would be given in Missouri state court if Wilson is charged is identical to the instruction that would be given if Wilson were a non-cop. And I think you would agree (with me and the vast majority of law-abiding Americans) that is how it should be?

Respectfully, I am going to have to disagree with your seeming assertion that legal and factual double standards are "properly" "create[d]" by "society" regarding the use of force by cops vs. non-cops.

If there is a double standard at play in this context, I believe that it exists at the charging and trial stage.

At the charging stage, prosecutors (at both the state and federal level) are far more hesitant to file charges against a cop than they would be if the facts were identical but the cop was a non-cop. Many argue that this is an unjust bias on the part of prosecutors (who have to work with cops on a daily basis and want to, for political reasons, be perceived as pro-law enforcement) that is unrealted to the facts and the law. I think there is some merit to that assessment. But there is another factor that plays into the prosecutor's hesitation: Statistically, it is very, very difficult to convict a cop based upon the same evidence that would, statistically, result in the conviction of a non-cop. I believe that this statistical reality is a proper consideration at the crime charging stage, given the limited resources that are available to most prosecuting offices and the uniform crime-charging standard that dictates that charges not be filed unless the prosecutor has a good faith belief that he/she can convince a jury of guilt beyond a reasonable doubt.

At the trial stage, the double standard comes into play because, as stated above, jurors simply don't convict cops at the same rate that they would convict a non-cop (based upon the same law and facts). There are many reasons for this phenomenon, not the least of which is the fact that most Americans rightfully view cops as the good guys who truly are there to "Protect and Serve." (Although, as time marches on and our society becomes more multi-cultural, and we have 24/7/365 (biased?) media coverage and the world according to Twitter, I believe that this perception is waning.)

Going forward, I believe that the manner in which officer-involved-shootings (especially those resulting in death or GBI) should be reformed. I am all for state's rights and local control when it comes to the traditional law enforcement function. But some uniformity in the handling of OISs (at least at the state level) is long overdue. These decision should not be left to local prosecutors who, for many reasons, don't necessarily act with complete objectivity. Rather a statewide OIS panel of highly qualified, apolitical, experienced attorneys, and perhaps a layperson or two, would seem to be worthwhile entity?

In any event, thanks for your intelligent, thoughtful commentary! Now you can't put your wahoo hat back on.

paul --

Probably it would be more accurate to call them different standards rather than a double standard.

You're correct that the law of self-defense is the same for cops and non-cops. But the legality, and justifiability, of the use of force by cops outside the context of self-defense is very different from what it is for non-cops, and properly so.

Example: At the ball game, the guy next to you is a drunken lout spilling beer and constantly yelling obscenities that you would just as soon your eight year-old not hear. You cannot pick him up and physically remove him from the park (that would be a battery) but the cops can (for disturbing the peace).

Were it otherwise, society would be much more chaotic and dangerous than it is. Every ballgame would have two dozen fistfights, and we'd be right back to the "law" of the jungle. It was precisely to cut down on the Hobbsian free-for-all that civilization got organized, and that's the reason the law recognizes the cops as the sole legitimate users of force (except in extreme cases).

Your idea of an expert panel on OIS's seems attractive in the abstract, but I'm skeptical for the same reason Kent is skeptical of "expert panels" to pick judgeship candidates and I'm skeptical of "expert panels" on sentencing reform. In practice, such panels virtually always get loaded with left-leaning academics who are neutral on paper, but turn out to be stalking horses for whatever suits the defense bar.

Thanks for your commenting here. Other legal blogs (I won't name names) should have commenters nearly as thoughtful and informed.


One last point.(You know those obnoxious attorneys always have to get the last word.)

In your ball park hypo, can't the dad make a citizen's arrest for disturbing the peace (and use reasonable force in doing so)? It would probably would be really stupid to do so with your kid there, especially if the hooligan was 6'5" 300# (like the "Ferguson Gentle Giant"), but doesn't our society offer that option in many instances?

No real disagreement with your other statements, as reasonable minds can differ regarding those issues -- all of which habe pros and cons.

Be well. And keep offering stimulating legal commentary.

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