Thursday, November 27, 2014

Retroactionary justice

I would like to announce my intense disapproval of clever Judd Legum at TPM explaining how Prosecutor McCulloch did it wrong because hahahaha Antonin Scalia said so in United States v. Williams (1992):
It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.
And therefore there should have been no testimony from Darren Wilson or evidence suggesting his innocence.

Scalia's ruling in that case was pernicious and an invitation to prosecutorial misconduct and historically wrong. As Justice Stevens explained.

In the normal world, the worst thing a prosecutor is likely to do is frame an innocent person, by hiding evidence that the person is innocent, and it happens quite a lot. Therefore Stevens insisted correctly that if substantial exculpatory evidence exists, not just any old exculpatory evidence but something that must really make an impartial observer wonder if it's even possible for the suspect to be guilty, it must be presented to the grand jury (US v. Page, 1987).

That doesn't mean that McCulloch handled the case properly. Somebody was framed, in fact, and exculpatory evidence was withheld, but the somebody wasn't Officer Wilson.

What McCulloch did was much weirder than anything Scalia or Stevens envisaged: he essentially threw out the whole of the Anglo-Saxon tradition and proceeded as if he were a French juge d'instruction or examining magistrate, laying out the evidence as for a panel of French judges to evaluate on their own; only he didn't have a panel of professional judges, he had a jury of Officer Wilson's and Mike Brown's peers, who can't be expected to do this work at all, and certainly not without a lot of guidance, because they aren't qualified.

What he did really, and this is why I understand it because it comes in human rather than legal terms, is decide there would be no indictment, but he didn't have the courage to say so; he knew it was wrong. So he arranged for it to look like an accident, in which the evidence and the jurors simply collided. Like fate.

Or, then again, as it worked itself out, like an upside-down trial. Since it began, as we all know, with an execution, and after the execution Officer Wilson passed the sentence, and after the sentencing Prosecutor McCulloch pronounced a verdict (or the verdict pronounced him, in his silence, in his refusal), and after the verdict the jurors held the trial (or the trial held the jurors), and then crimes against decent society were committed, the burning of property—shops and cars—, and everything made sense, to the Ferguson authorities and the National Review. It's retroactionary justice.

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