Wednesday, November 26, 2014

Lex Anteinternet: Contempt of Court

For the second time in a little over a  year, we've been treated, or perhaps mistreated, to examples of large sections of the American population rejecting the rule of law, for the concept of mob rule.  This is, to say the least, disturbing in the extreme.I commented on the last instance in July 2013 here, in this post, Lex Anteinternet: Contempt of Court: As I noted there, I don't follow criminal trials as a rule, but the case of Florida v. Zimmerman proved impossible not to follow.  In that case, the jury found the accused, Zimmerman, innocent by way of an application of the traditional doctrines of self defense, but which resulted in widespread public outcry, including a comment by President Obama.

Now the nation, and indeed the world, has been witness to the degree to which quite a few Americans resort to the old concept of lynching crowds over the jury system, to which we supposedly all claim happy allegiance.  Americans are fond of saying that we have the best justice system in the world, but we're pretty quick any more to demonstrate that we'd really rather return to the old, old days of trial by local majority or even economic result.  To anyone who actually believes in any sort of justice system, this should be disturbing in the extreme.

This arises, of course, in the context of Ferguson Missouri man Michael Brown being shot by Ferguson police officer Darren Wilson.  

Worth noting, the way that this has been framed in the public mind seems to have been in error from the very onset.  Brown, in the public mind, is often portrayed as a child, but he was an adult man of 18 years old. For those who think that's a child, we should keep in mind that at 18 you are old enough to vote, old enough to serve in the armed forces, old enough to be treated as an adult in every fashion except for the purchase of a handgun, and of the age where if you are charged with a crime, you are charged as an adult.  Officer Wilson wasn't really much older, only being 28 years old at the time, a difference which seems large when  you are 28, but not so much later.

Nobody will ever really know what happened that night, but what seems to be the case by way of credible evidence is that Wilson stopped Brown, who had just stolen cigars from a convenience store.  That Brown wasn't a saint is really glossed over in this, but by the same token the theft of cigars is a misdemeanor and not of the crime which, under the common law of old, entitled an officer to use deadly force by its simple existence.  Felonies, for what its worth, did fit into that classification at one time.  But theft is theft and to be detained by an officer following a theft is always something of concern to the thief, which at that point, Brown was.

This resulted in some sort of a scuffle.  We'll never know what happened, but by the end of it, Wilson had drown his sidearm, after having been hit at least several times by Brown, and shot him.  Wilson fired something like 12 rounds from his sidearm, hitting Brown six times. 

Now, generally a person would focus on the number of rounds expended, which seems high, but quite frankly its been the police norm for several decades.  At one time police officers carried revolvers of small caliber, and generally they operated in a world in which simply hitting a suspect usually meant he'd give up. The exception for decades was the FBI, which operated in a world in which suspects were usually extremely dangerous and would fight it out, sometimes with some surprisingly heavy weapons.  In turn, FBI agents usually carried .45 ACP handguns, a heavy handgun that did big damage if you hit a person, anywhere.

Staring in the 1970s, however, police forces switched to semi automatic handguns which was coincident with the rise of drug use. Drug use made a lot of suspects really dangerous, as they'd lost all reason as a result, and so they'd keep on keeping on.  Most police handguns are anemic, however, and so the training that has come up over the years, starting first with the training in New York City, has been to have officers keep on firing until a suspect goes down.  Frankly, in my view, most forces might be better off with a bigger handgun that required a single shot, but that's not what most departments use, save for some specialist within large departments, and in some sheriff's offices.

So, was the use of force excessive?  Well, we weren't there.  So the matter was sent to a grand jury.  The answer isn't clear from these facts alone.  We can't say its excessive based on number of rounds fired alone, and we can't say that Wilson didn't act excessively either. After all, Brown is dead.

Here's where the disturbing trend comes in.

Grand juries deliberate in secret.  Not all states use them, but Missouri must.  They can take in all kinds of evidence, nearly without restraint. At the end, they have the call on whether to charge or not.

Here, they decided not to.

The mob isn't accepting it. But the mob didn't hear the evidence. And the protest has spread around the nation, and there are calls to charge Officer Wilson with Civil Rights violations.

This is no different than the lynch mob of old.  The mob has decided what is right and wrong and it wants its decision carried out. But, should we heed the mob, we have no justice system.  A justice system which cannot render an unpopular decision isn't a justice system, it's a farce.  People protesting this decision are arguing for a type of jurisprudence found in Fascism, or Communism.  They should be ashamed.

This would be different if we had any reason to believe that the grand jury ignored the law.  But on the contrary, it appears they did not.  They had a difficult decision to make but they appear to have made it properly.  Nobody who wasn't in the grand jury really knows what the evidence in this matter even is.

This entire trend has become increasingly common in the United States in recent years.  We already have seen people charged with crimes that are really economic class crimes, or even simply political crimes, as the population feels good about them.  Those trends are hugely disturbing as they suggest that success in business or in politics risks being criminal.  Now we're seeing the old, old concept of revenge revived as a basis for judicial action, and it should never be.  People who feel strongly that we need a just system of justice should be disturbed.

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