I Deplore The Disorder And Restlessness In Missouri–And I’m Looking At You, Mr. Prosecutor

I do not deplore that there was no indictment of Darren Wilson, the police officer who shot and killed Michael Brown, so much as I deplore the way St. Louis County prosecutor Robert McCulloch failed in his duty. He failed to even recommend a specific charge against Wilson. If you are not going to do that, you might just as well skip the PR charade of pretending you took the witnesses against Officer Wilson seriously at all. There were conflicting accounts, to be sure–but sorting them out is ordinarily the work of a trial jury, not a grand jury prosecutor, who almost always presents just the incriminating evidence. And an indictment does not mean the accused is presumed guilty, but you would not know that if you trusted McCulloch to give you a fair accounting of the case. His presentation implied that the non-indictment wrapped things up and ought to preempt further discussion.

Law professor Noah Feldman noted in Bloomberg View that for better or worse, a grand jury “hears only what prosecutors want it to hear, [thus] it no longer functions as a meaningful check on [prosecutorial] authority. According to the maxim [attributed to N.Y. judge Sol Wachtler] prosecutors can indict a ham sandwich if they really want to do it…. Prosecutors never treat the grand jury [the way McCulloch did].” That is, prosecutors never pretend, as McCulloch did, to take a laissez-faire stance. They never truly (and McCulloch didn’t either) let the grand jury make up its own mind. Out of over 160,000 federal grand jury proceedings in 2010, there were just 11 non-indictments.

But grand juries, some say, hardly ever indict police. That may be true, but should it foreclose the question, Why is that so? There are understandable reasons that police are given latitude by law to use force, even deadly force, in circumstances where we ordinary citizens are not. But in this case, it is hard to escape the sense that the testimony implicating Officer Wilson was buried under opposing accounts and muddled accounts–several of which emanated from police officials themselves. The authors of a USA Today piece today titled “Grand jury charges are easy, except against police,” assert that to understand why the grand jury did not indict, “you have to understand human nature…’People do not want to believe officers do bad things,’ said Randolph McLaughlin, a law professor at Pace University and a trial lawyer who has handled wrongful death cases against police. ‘Society gives them the benefit of the doubt.'” One has to stop here and ask who counts as “people” and who counts as “society.” And then prosecutor McCulloch looks guilty of moral disorderliness and restlessness. He gave such a repulsive imitation of what grand jury prosecutors ought to do that a lot of people are unsurprisingly suffering from a sort of “uncanny valley” effect–was that really justice?

Supreme Court Fails To Throw Back Undersize Herring

i refer not to this week’s case about actual undersized fish, but to the latest unripe challenge to the Affordable Care Act. Of course there was some ambiguity in one sentence of a subsection regarding the meaning of “the state” but the choice to take this case even before lower courts had ruled is a sign that at least four justices are outright political hacks lacking the least little bit of judicial modesty. This attack on Obamacare is even more unmoored from deference to the democratic decisionmaking process than were the 2012 case or the Hobby Lobby “religious liberty” ruling. The clear intent of the Affordable Care Act was to provide a mechanism for subsidies. True conservatism would be to overcome the law through further legislation, or else sit quietly without complaining. But we have some unruly and turbulent Supreme Court justices who seem unwilling to abide their role in a democratic republic.