August 22, 2014
Ask Not For Whom the Clue Bat Swingeth....
It swingeth for thee. In a delightfully entertaining post, Patterico takes on a New Republic author who dishonestly suggests that a legal standard used by 49 of the 50 states is actually some kind of dangerously-out-of-the-mainstream aberration. Even the author's inevitable "correction" continues to misrepresent the facts:
The piece still says it’s different in “other states” (plural) with only a link to Ohio — which is, again, the only state in the union that clearly and consistently puts the burden on the defendant.
The post closes by saying:Within reason, legal protections for, and presumptions in favor of, policemen acting in the line of duty make sense. Society has chosen to give these men and women guns, after all. And if we expect these officers to put their lives on the line, we owe them some measure of trust and due deference. But trust cannot become a license to kill. We have a word for a situation where killing is the default, where violence is so expected that the burden is no longer on a killer to prove his actions are justified. That word is war. It has no place in suburban St. Louis.
This is arrant nonsense. Killing is not "the default" anywhere in America, and this incident would not be news if it were. It's news precisely because what happened to Michael Brown isn't what normally happens - just as prosecutors not bearing the burden of proof isn't the normal rule in 49 out of 50 states. Patterico continues:
No, the word for a situation where the burden is on the prosecution to disprove self-defense is “America.” With the exception of Ohio and possibly Louisiana in some cases, that is the norm, and it’s hardly a shocking one in American jurisprudence: the burden of proof is on the prosecution. CRAZY!!!!11!!11!ELEVENTY!!
I understand this rule bothers people who want to presume cops guilty when they kill someone. But that’s our system — and lefties like Yishai Schwartz generally like it, until it runs up against their preferred outcomes. Then, the system can go hang — and so, it seems, can basic research.
Why are so many of the folks who are continually scream that young black men are being railroaded by Evil, Racist Prosecutors now suggesting that centuries-old legal protections for defendants are suddenly not just unnecessary, but dangerous? Is this a general principle they're willing to adhere to, regardless of who stands accused?
Of course not. But then these are the folks who have been arguing - amid almost two weeks of wall to wall, unrelenting media coverage of innumerable daily protest marches in Ferguson - that police have prevented the protesters from assembling or being heard.
Only in America could allowing thousands of protesters march up and down (and in some cases, to block) public thoroughfares for nearly two weeks be framed as an intolerable infringement of their First Amendment rights to freedom of speech and assembly. In most jurisdictions, permits are required for large gatherings or protests that occur on public property. So far as we know, this requirement has not been ruled unconstitutional.
Did these protesters all get the required permits? Some will argue that being asked to obtain a permit is an intolerable limit on their absolute freedom to do anything they want, at any time they want, regardless of how their actions impact others. Such is the popular mood these days. We are all principled warriors for justice and free speech and liberty....
...unless, of course, we don't like the practical outcome of our oh-so-principled stands:
Missouri, where protesters don’t truly want justice and there has been no peace.
What justice demands in the case of the shooting of 18-year-old Michael Brown by Officer Darren Wilson in disputed circumstances is a full and fair deliberative process that goes wherever the evidence leads. But is anyone marching so that Wilson can go free if the facts don’t support charging him?
No, the demand is for him to be arrested immediately and to be prosecuted no matter what. MSNBC anchor Chris Hayes, relaying the mood in Ferguson, has said that the security problem there isn’t solvable absent an indictment of Wilson. As if a grand jury should be beholden to looters.
Actually, some protesters have been demanding a fair trial for Officer Wilson. The same crowd who have been loudly asserting their right to free speech lost no time in trying to deprive others of that same right:
In events like the Ferguson “crisis,” the most revealing moments occur in plain view and in the full light of day. One such moment was the reaction of the crowd of protesters to the two people who were protesting against them. To judge from the televised reporting of the event, they were surrounded, shouted down, and more or less intimidated. They had to be rescued by the cops and ferried away to safety. What they were arguing — insofar as scrawled signs constitute argument — was that justice demanded a fair trial for Darren Wilson in a court of law but not a conviction determined in advance. This was interpreted by the crowd as unacceptable provocation.
Now, that sentiment is an impeccably liberal one — almost an ur-liberal belief. One can hear John Stuart applauding it as vigorously as his temperament allowed. What made it intolerable apparently was that this liberalism leaves open the possibility that Wilson might be acquitted.
And so we're back to "guilty until proven innocent". But only for people who don't think the way we do, people we don't like, or people who don't look like us. Which used to be the very kind of intolerance progressives are supposed to be fighting:
The idea that you can tell who is innocent and who is guilty by the color of their skin is a notion that was tried out for generations, back in the days of the Jim Crow South. I thought we had finally rejected that kind of legalized lynch law. But apparently it has only been put under new management.
The sad thing is that we've been down this road before too many times:
Back in the 1950s, when the federal courts began striking down the Jim Crow laws in the South, one of the rising demands across the country was that the discriminators and segregationists obey "the law of the land."
But, somewhere along the way, the idea also arose and spread that not everybody was supposed to obey "the law of the land."
Violations of law by people with approved victim status like minorities, or self-righteous crusaders like environmentalists, were to be met with minimal resistance — if any resistance at all — and any punishment of them beyond a wrist-slap was "over-reacting."
College campuses became bastions of the new and sanctified mob rule, provided that the mobs are from the list of groups approved as politically correct. Otherwise, even an injudicious remark could bring swift and certain punishment under "speech codes."
The politics of condoned law-breaking is part of the moral dry rot of our times. So is settling issues in the streets on the basis of race, instead of in courts on the basis of law.
The passion of angry mobs - of all races - is why we have laws in the first place. It is why Justice is usually portrayed blindfolded. The ideal that who you are (or whether the mob is with you, or against you) should have no bearing on how you are treated by the criminal justice system is one of the foundations of a free society.
Those who work to actively undermine faith in the rule of law simply because it - like all institutions created and administered by fallible human beings - can be manipulated by those in power should stop to consider that this frail bulwark is all that stands between us and barbarism. The alternative to the rule of law is the rule of men. And as we've seen over the last two weeks, people are not naturally inclined to be fair or principled, especially when dealing with anyone they don't view as one of their own.
Be careful what you tear down. You may find a use for it, some day.
Posted by Cassandra at August 22, 2014 08:43 AM
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Kudos to VilCo for the brilliant presentation – two posts, back to back – both dealing, at bottom, with the lengths to which people will go to make shit digestively and politically comme il faut.
Posted by: George Pal at August 22, 2014 02:40 PM
I really should have a post category called, "Elephant Droppings in Everything" :p
Posted by: Cassandra at August 22, 2014 03:45 PM
...both dealing, at bottom,
I see what you did, there. Oh yes, I see :p
Posted by: Cassandra at August 22, 2014 03:48 PM
First it's "tit" and now it's "@hit". What's up, yo?
You tryin' to be punny? Ima have to tell on you for yo potty mouf;)
LeDASHa (the dash don't be silent) Le-a.
Posted by: Le-a (the dash don't be silent) at August 23, 2014 09:16 AM
LeDASHa (the dash don't be silent) Le-a.
OK, that destroyed me :p
Posted by: Cassandra at August 23, 2014 09:53 AM
Le-a my ass. But you still be punny, Buckwheat.
Posted by: George Pal at August 23, 2014 10:59 AM
OK, guess I have a problem w the idea that the cop needs a fair trial. What ought to be required is due process and an unbiased investigation into this tragic altercation.
If the investigation shows 'good' likely hood that there was indeed a physical struggle in which the cop was injured and suspected the kid was trying to get his gun
There is nothing to prosecute.
Posted by: CAPT Mike at August 23, 2014 11:11 PM
...I have a problem w the idea that the cop needs a fair trial. What ought to be required is due process and an unbiased investigation into this tragic altercation. If the investigation shows 'good' likely hood that there was indeed a physical struggle in which the cop was injured and suspected the kid was trying to get his gun Then There is nothing to prosecute.
Well, the bar for indictment is set pretty low: generally, only the prosecution presents evidence (so the process is one sided from the get-go), and the standard is essentially probable cause: is there enough evidence that the accused *may* have committed the crime that jurors think a trial is warranted to fully examine the evidence?
Given that a human life was lost here, it would be downright bizarre if the grand jury voted, "No".
I am already inclined to think this guy didn't commit a crime (but I require evidence to confirm this), and even I think it would look VERY fishy if Wilson weren't at least indicted. Absent clear exculpatory evidence, I can't see how the grand jury would be justified in saying, "Oh, let's not even bother with a public trial to hear both sides."
I do think a trial is needed for the same reason the military generally goes ahead with investigations (or at least good commanders do) even when the evidence against the accused is murky: to let it be known throughout the command that they take accusations of wrongdoing seriously and that the command won't turn a blind eye to wrongdoing or play favorites.
Posted by: Cassandra at August 24, 2014 09:30 AM
Yes, the military does an article 32 investigation, but charges are often dropped, or resolved via non-judicial punishment hearing (and even in office hours / Captain's Mast folks are sometimes found not guilty).
Posted by: CAPT Mike at August 24, 2014 06:52 PM