Sunday, December 14, 2014

Why Darren Wilson Must Face Civil Rights Charges

I see it all the time. Another clueless person says that Wilson must be innocent because of testimony given at the Ferguson Grand Jury hearings. Wilson was afraid of dying, so he had to shoot an unarmed man. The unarmed man, Michael Brown, was high on marijuana, so he mistakenly charged at the officer who was shooting at him.

There are so many errors in the Grand Jury transcript that even these true believers might notice something amiss. But these people ignore any facts that don't agree with their preconceived ideas. They believed that Obama was born in Kenya. They believed that Hillary Clinton killed Vince Foster. No evidence was ever produced to substantiate these beliefs, but the true believers still keep the faith.

The true believers read that Darren Wilson shot 12 bullets at Michael Brown, hitting him 6 times. Wilson fired at least 6 times at Brown as the young man was running away. Wilson testified that he was terrified of Brown, and that's why he killed him. Reality check: If Wilson was terrified of Brown, why did he chase him over 100 feet down the block? Shouldn't he have called for backup instead of following the man of whom he was terrified?

The true believers have perused a 800-page transcript of the Grand Jury hearing. Most of them do not know that this was not an actual trial. If it had been an actual trial, there would have been a judge there to explain the law to the jurors and stop the lawyers from using their questions to testify or explain the law. Any one of the serious errors made by the prosecutors during the hearings would be enough to reverse the verdict on appeal--if it had been an actual trial.

If the Grand Jury hearings had been an actual trial, the prosecutor would have cross-examined Wilson for hours, perhaps days, about inconsistencies in his testimony and his actions. Does Officer Wilson believe in demons? How could he recognize that Mike Brown was a demon? What was it about the face of this African-American boy that made Wilson so frightened?

So the true believers, among whom are many violent racists, can point to the Grand Jury decision not to prosecute Wilson as proof of his innocence, despite 6 credible eyewitnesses who described how they saw Wilson gun down a teenage boy because the boy had been walking in the street. True believers believe that every African-American male is a violent criminal. This decision vindicates that belief.

African-Americans and those who speak on their behalf, however, know that police officers harass, stop, arrest, and shoot young black men 10 times as often as young white men, even though it is believed that both white and black men break the law with about the same frequency. At least, the same percentage of whites and blacks in DC say they smoke marijuana, but 86 percent of the arrests are of blacks. That is why the crimes of Darren Wilson and McCullough need to be recognized and the perpetrators punished.

Dorian Johnson's Story

 A commenter on Google Plus asked, "My understanding may be wrong but policy is to shoot fleeing felons isn't it?"

Uh, no. In the first place, you're not supposed to kill a suspect. You're supposed to arrest them and bring them in for arraignment and trial.

Aside from that, the police policy is not to shoot at fleeing suspects--not felons. Remember, he's not a felon until he's convicted of a crime. In fact, it's exactly what a cop is not supposed to do, for a very simple reason. Shooting a gun is hazardous to bystanders. 

Once a bullet leaves the barrel, it can go anywhere. Hit off a rock and ricochet, or the ground, or a car. It can go through walls and kill someone sleeping in his bed.

I contest that Brown assaulted the police officer. That's not what Dorian Johnson said, who was standing right next to Brown at the time. That's what Wilson said, who had to have a reason for shooting at the back of a fleeing suspect.

Johnson said that Wilson grabbed Brown by the neck. Brown was 6'5", but Wilson was driving an SUV, so he could reach Brown. Johnson said Wilson threatened to shoot Brown when Brown tried to get out of Wilson's grasp. That would be the point at which Wilson pulled his gun. My theory is that Brown tried to deflect the barrel of the gun away from himself, which was when he was shot and wounded in his hand. All this is confirmed by the autopsy report.


Wilson's story is not plausible. 
Sure, you can reach into a car, but you can't reach around a cop and grab his gun, not unless it's already out of its holster. Wilson is never going to admit he already had his gun out and was pointing it at an unarmed suspect. A good attorney could have ripped his story to shreds on cross-examination. But Wilson was never cross-examined. Only one side of the story was told to the Grand Jury, which is why I call it a kangaroo court.

The Federal Case

Wilson could still be tried in a real trial, with a judge and an actual prosecutor, because a Grand Jury hearing is not a trial and a decision not to indict is not an acquittal, so there can be no double jeopardy. The governor of Missouri could appoint a special prosecutor, but he has indicated he will not. Of course not. He doesn't want to risk finding Wilson guilty after the extraordinary measures the prosecutor took in getting the Grand Jury not to indict.

There is one other possibility. There is a federal civil rights law on the books. It makes it illegal to deprive someone of their civil rights under color of law, which means that a cop or prosecutor pretends they are following the law when in fact they are breaking it. This "color of law" statute was passed in 1868 to enforce the 14th amendment. For the next 80 years, it lay dormant, as Jim Crow laws were passed in the South and African Americans were systematically denied their civil rights.

In recent years, however, the Color of Law statute has been used against Southern racists who killed civil rights demonstrators or bombed churches. You will read that the statute is difficult to enforce because the prosecutor must prove intent to deprive someone of his or her civil rights, but this is slightly inaccurate. The federal prosecutor must prove that the accused person intended, not just to murder someone, but to deprive someone of their civil rights. This is more difficult than just to prove that a police officer shot someone.

The important word in the law is willful. The prosecutor must prove that the shooter was willful in the act, that he knew what he was doing was not part of his job ("color of law"), but he did it anyway. The bad news is that this would be almost impossible to prove for a single person acting alone. Who knows what was going through Wilson's mind when he pulled the trigger on Michael Brown. He is certainly not going to give us an answer that would incriminate him. 

In his lengthy testimony before the grand jury, Wilson kept on saying how frightened he was of Brown, who looked "demonic". There are a couple of things wrong with his statement. First, he had to know that Missouri state law granted a policeman authority to shoot and kill an assailant if the policeman feared for his life. Second, he had to run 150 feet to get close enough to Brown to be attacked by him. 

The first fact makes it difficult to believe Wilson when he says he was frightened. He has a strong motivation to lie about this fact because he could face punishment if he says he wasn't frightened. The second fact also tends to contradict his statement that he was frightened because he jumped out of a vehicle, equipped with a radio and, presumably, a shotgun, and ran after a man he says he was frightened of. This is not the action of a reasonable man. The reasonable man would stay in the car and call for backup.

Wilson fired two shots in the car. One struck Brown in his hand. The other was embedded in the car door. Wilson struck Brown with five more bullets, one in the arm, three in the torso, and one in the head, the shot that killed him. We know from a digital recording made at the time of the shooting that 12 shots were fired. 

Five shots were unaccounted for. Either Wilson fired those shots as he was chasing Brown, or he fired at Brown and missed him just before he fired the shot that killed him. Since Brown was a large man and almost stationary at the time of the last shot, it seems unlikely that Wilson would miss five shots, then strike Brown with four. Rather, it is likely that Wilson fired the shots while he was chasing Brown.

Willful Action

For Wilson to be convicted under the federal statute, he had to have acted willfully to deprive Brown of his civil rights, in particular his right to live. The problem encountered by the Supreme Court in Screws v. U.S. is that depriving a man of his right to live is the same crime as murder, and murder is not a federal crime but a crime reserved for the states. In order to succeed, the court must decide that Wilson intended to deprive someone, whether Brown or someone else, of a Civil Right. That is the problem facing the federal government right now.

Make no mistake about it, the Justice Department cannot let itself be seen as helpless in the face of gross misconduct on the part of the state. The way around this problem was provided in the case of U.S. v. Price by convicting the murderers of Chaney, Schwerner, and Goodman, of conspiracy to violate the civil rights, not of the Murder victims, but of the black people of Mississippi. The three victims were working to gain voting rights for blacks when they were murdered by the sheriff of Meridien, Mississippi, and a number of Ku Klux Klansmen. The court determined that the murderers were motivated by their desire to prevent blacks from voting, in other words, to deny their civil rights.

A similar charge could be brought in this case. After the death of Brown, the Prosecutor, with the assistance of Wilson's lengthy testimony, was involved in a conspiracy to deny the people of Ferguson their right to petition for redress of grievances. The grievance was the failure of the courts to try Wilson for murder. The police department of Ferguson was involved in a conspiracy to deny the people of Ferguson their right to petition for redress of grievances as well as their right to peaceably assemble.

There is no lack of evidence of these crimes. The police sought, day after day, to suppress legitimate assemblies with truncheons and tear gas. They committed false arrests against members of the press and neutral observers. Their intent was clearly to deny the people of Ferguson their civil rights as defined in the First Amendment of the Constitution and guaranteed by the Fourteenth Amendment.

The Prosecutor released a voluminous transcript which proves that he did not make any attempt to convince the grand jury to indict Wilson. Instead, his deputies interrogated witnesses in such a manner that the grand jury had to assume that Wilson was innocent. Wilson was permitted to testify without cross-examination for hours. The substance of his testimony shows that he was either coached by lawyers on the points of Missouri law relating to police violence, or else was well aware of those details through previous experience.

There is a member of the Ferguson police force who has stated that the whole force was racially biased and prejudiced against the people they were sworn to defend. This prejudice took form in denial of many basic civil rights, such as the right to walk down the street without being harassed, guaranteed by the Fifth Amendment as freedom from unreasonable search and seizure.

All these violations of civil rights were committed by the police force and the prosecutors of the city of Ferguson. The Justice Department has a duty to see that the perpetrators are punished. Bringing these people to justice should have the same salutary effect on the respect for civil rights in Ferguson as the trial of Scherner, Chaney, and Goodman had in Meridien, Mississippi, in 1964.


Monday, November 17, 2014

Why healthcare.org doesn't work

No one should be surprised that the federal government can't do database interfaces very well. Their computers are obsolete, of course, as are the development platforms they use. They require their programmers to use obscure programming languages that they are not allowed to fix. But the worst barrier between you and the database of your choice is the rigid hierarchy that infects the halls of power.

We know how to develop good technology. Silicon Valley has numerous companies that do it quite well. Google and Facebook come to mind. But the federal government pays absolutely no attention to the rules of program development, among which are the following:


1. Hire the best engineers you can find. Forget about Ivy League credentials and teacher recommendations. My company once hired a high school student who had been helping them with user testing. They waited until he got out of high school, though.

2. Give your developers their head. These developers are like spirited racehorses. If you tell them they must wear a suit and tie and be in the office at 9 am, they will bolt for the nearest exit, where they will find project managers eager to hire them. 

3. Make sure your engineers are creative and flaky. Encourage them to stay at the office by giving them whatever they need. Google gives them espresso and food. There are also game rooms (see below).

4. Let them goof off. My favorite software company developed video games. Anyone in the company could play video games at any time. That was part of the culture. In other companies, the department snitch spies on you and tells the manager you are goofing off. The Roman philosopher Seneca explained it this way: Reading and writing are opposites. You must do both, like breathing in and breathing out. Programming and playing are opposites. You can't have one without the other. One company I worked at had a big red nerf bat. The project manager came to your cube and hit you with it if you were late with your code. The same company had super-soakers (squirt guns). Members of the development team would sneak up on someone and spray him with water.

5. Pay them time-activated bonuses. These usually take the form of stock options that don't vest until a person works for the company for several years. This keeps them working for the company and gives them an incentive to keep producing.

These are just a few of the effective practices used in the computer industry to produce  high-quality software. Here, by way of contrast, are some of the practices of the federal government:

1. Always hire graduates of top Universities. Federalistas believe that they should hire people with good grades who are skilled at pleasing their professors. These people should fit in well in a federal system that prizes pleasing your boss above all other virtues.

2. Always give preferential treatment to veterans. Unfortunately, this hiring practice works against finding good programmers. Veterans learn how to follow orders. Good programmers learn to disregard orders whenever necessary. Their attitude is different. They know that managers can't code, so they don't pay attention when managers tell them how to do something. Good managers, on the other hand, don't give explicit orders to programmers, because they know programmers like to figure things out on their own.

3. Hire stable workers who will stay on the job for many years. This works well when you are looking for people who need to fit in to a hierarchy to be happy. Such people make terrible programmers. Good programmers find problems in other people's code and tell them about it. Good programmers abandon a structured design when it isn't working. Good programmers find new and innovative ways to solve problems.

Sunday, November 16, 2014

Since the Republicans refuse to act on immigration, Obama will

Obama's proposal, as released, contains several different options, which he is evidently inviting the Republicans to accept. The Republicans, of course, will reject all of them, so immigrants to this country will have the first real breathing room since 1986, when President Reagan granted amnesty to 2.7 million undocumented workers then living--and working--in the US.

Today there are 11 million undocumented workers. Many of them have American children and relatives who would like to join them, like aged parents, but cannot. Major corporations that hire these people would like to keep the system the way it is, because it saves them money.


I know one undocumented worker who works cleaning up operating theaters in a hospital, a dirty, difficult job. She makes $10 an hour from the company the hospital hires to do the job, The hospital also hires people directly to do the same job and pays them $14 an hour, but the hospital requires those direct hires to be validated citizens. So the entire US economy is based on a discriminatory system as unjust as any Jim Crow Laws, where some people can be paid less than others because of the chance of their birth.


There is no chance that corporate-ruled America will expel immigrant laborers from this country. The corporate system uses immigrant labor to pad its bottom line. Our corporate masters make too much money off the current unjust and immoral system for them ever to question it.


The worker of whom I speak has been the sole support for 2 children and works 2 jobs. She is just the sort of person the Republicans are always extolling as exemplary citizens: hard-working, law-abiding, receiving no government benefits. But instead of rewarding her efforts, the Republicans propose to expel her and her child who was born in this country, thus punishing a child for the transgressions of her mother.


There is no excuse for such immorality. The Republican party must be rejected utterly by every thinking, feeling American. Though the Republicans use every conniving trick to stay in power, no one party can stay in power forever. We will remember your excesses whenever evil deeds are mentioned.



Friday, November 14, 2014

Sierra Club sues US to stop new tar sands pipeline

A number of environmental groups, including the Sierra Club and the National Wildlife Federation, have sued the State Department over its failure to protect the US from Canadian tar sands oil. At issue is a pipeline, called the Alberta Clipper, currently bringing oil across the border at a rate of 450,000 barrels a day. Enbridge Energy wants to increase the volume of oil to 800,000 barrels per day.

The State Department has ruled that the new pipeline does not need its approval, despite nearly doubling the amount of tar sands oil entering the US. The Sierra Club suit disagrees with their assessment.

The State Department is clearly at odds with President Obama's public statements on this. Obama promised he would not permit more tar sands into the country if the project would increase greenhouse gas production. The State Department study claimed it would not. But practical considerations prove that it would.

The State Department study claimed that the tar sands oil could be transported by rail if the Keystone XL Pipeline is not built. But attempts to use railroads have proven costly. Instead of earning $40 per barrel of oil shipped by rail as it predicted, Southern Pacific Resources is earning less than one dollar per barrel. The failure of its oil-by-rail strategy has driven Southern Pacific to the edge of bankruptcy.

Since the State Department's study relied on the viability of the oil-by-rail strategy to reach its conclusion that Keystone XL would have no effect on greenhouse gas production, the entire study must now be rejected as false. Instead of proving that the Keystone XL pipeline would not harm the environment, the State Department has proved that it will. And President Obama has promised he would not approve the Keystone XL under these conditions.

Democratic Senators have completely caved in to Oil Industry demands. They are proposing to approve the Keystone XL despite the State Department's fiasco. The Senators say they are acting to save Senator Mary Landrieu's seat for the Democrats. What they are really doing is the bidding of the oil industry.

The oil industry is getting desperate. The tar sands in Alberta are the third largest proven oil deposit in the world. But tar sands are expensive to refine and destructive to the environment. The oil industry needs Keystone XL to extract this poisonous wealth. Right now they are losing their battle.

Tuesday, November 11, 2014

States where it's hard for African Americans and Latinos to vote

Here are the states (red) and counties (blue) that formerly required preclearance under the Voting Rights Act. Notice these are among the same states that passed voter ID legislation that resulted in hundreds of thousands of people being denied the vote, including 600,000 in Texas alone.

During the Jim Crow era, these states had similar laws that were used to prevent African-Americans from voting. Favorites were a poll tax which was small enough for whites to pay but to much for A-As to afford; and a literacy test, which varied from a simple test for whites (such as reciting the alphabet) to a much more difficult test for A-As (such as reciting the Declaration of Independence)

Votes of African-Americans and Latinos will continue to be suppressed in these states so long as Republicans control Congress, which is likely to be a long time. Thank the US Supreme Court for this latest injustice due to their repeal of the Voting Rights Act in Shelby County v. Holder.


Since when do 5 unelected judges get to decide who becomes president (as in 2001) or who wins the Senate? Thus canceling out the votes of millions of American citizens.

Sunday, November 9, 2014

Michael Brown homicide: Ferguson Prosecutor Prepares to Cut Wilson Loose

Grand Jury testimony is supposed to be secret, but the Ferguson DA's Grand Jury has so many leaks it might set some kind of record. Grand Juries are supposed to be secret because they are completely opposed to the adversarial system that is supposed to make our justice system fair. 

In a normal court, a prosecutor for the state is allowed to attack a defendant, but the defendant is supposed to be represented by an equally able attorney. The defendant cannot be compelled to testify against himself. There is a judge whose duty is to see that the lawyers for each side argue fairly. It's called the adversarial trial system and it has its roots in English law back before the Magna Carta. 

But the Grand Jury has none of those protections for the defendant. In fact, Grand Juries are considered so unfair to the defendant that the US is the only country in the world that still uses them. Grand Juries are not run by the courts, but by the prosecutor, so there is not even a judge to help the jury persons understand the law.

The defendant does not need to be present and may not have defense council in any event. The prosecutor holds all the cards. The grand jury itself is composed of ordinary citizens, so the prosecutor acts in place of the judge, as well as the prosecuting attorney, by informing jurors about points of law.

Out of a recognition that Grand Juries are inherently unjust and prejudicial to the prosecutor's opponents, precautions have been taken with regard to their use. In the first place, they are supposed to be absolutely secret.

Precautions are taken to prevent leaks. Releasing testimony from a grand jury constitutes contempt of court. Violators are liable to fines and imprisonment, as well as the charge of obstruction of justice. Nevertheless, and despite the seriousness of leaking information, leaks have been coming from the Ferguson grand jury steadily. Protesters and county officials both see a pattern in these leaks.

Protesters believe the prosecution is leaking information to affect public opinion in favor of Officer Wilson. Someone tweeted early in October announcing that the case against Wilson was weak  It said:

"I know someone sitting on the grand jury. There isn't enough at this point to warrant an arrest. #Ferguson."

Prosecutors claimed that the owner of the twitter account had no connection with the prosecutor's office. Protesters pointed out that the same twitter account had been used to spread rumors about the Trayvon Martin trial a year earlier, tweets that were critical of the African-American community and supportive of Zimmerman. Regardless of the source of the tweet, its effect was to prejudice the public in favor of Wilson.

Instead of investigating whether the leak was real or not, the Ferguson prosecutor's office ignored it. They found the person who owned the twitter account and examined his computer. They concluded that the tweet was not sent from that computer. And that was the end of it.


Another intentional leak which may have come from the prosecutor's office was the autopsy report, also supposed to be confidential. None of the grand jurors had access to that document. The St. Louis Dispatch report quoted a forensic pathologist, Judith Melinek, as saying that the report supported officer Wilson's version of the incident. But Melinek says she was quoted out of context, and in fact she had told the reporter for the St. Louis Dispatch that the autopsy could support several interpretations, not just Wilson's version.

The official autopsy revealed that the victim had been taking marijuana. The reports of the autopsy said there was enough marijuana in Brown's system to cause hallucinations. This statement is extremely prejudicial, since it presents as factual something that can't be known. Additionally, even the idea that marijuana causes hallucinations is disputed, so stating it in a newspaper article misinforms the public about the truth.

All of the leaks favored the officer, Wilson, who was investigated in the first place only because demonstrators from the community demanded it. But we're looking at what was released. The leak said that 6 witnesses backed up Wilson's story. This only helps the prosecutor. If it were leaked by a jury member, it would be diffuse, not concentrated on one point. As it is, it releases information helpful to Wilson's defense in the way a lawyer would make an argument.

I found it incredible that African-American witnesses would be so well-organized that they would all have the same version of an incident. If they were that well-organized, all the accounts would be identical, the way all Fox News accounts are identical, no matter which of the talking heads is speaking. But that is not the case.

A St. Louis Dispatch article published soon after the shooting took place reported several witnesses telling their account of the events. There was no agreement among the witnesses on exactly what had happened. There was also no single version of events that every witness agreed on. This contradicts the information in the leak that stated that six or seven of the witnesses supported Wilson's version of the incident, but were afraid of reprisals if they spoke out publicly. 

In addition, the reporter interviewed two workers who did not know Michael Brown. One of the workers said that Brown had his hands up and was trying to surrender when Wilson shot him several times, killing him. This account, given by an eye-witness with no reason to fear reprisals shortly after the event, does not support Wilson's version of the incident.

All of the leaks have favored Wilson, but in such a way that a prosecutor, organizing his case, would present them to a jury. Circumstantial evidence points to the prosecutor's office as the ones who leaked the information. If true, they are engaged in the worst kind of injustice, convicting Michael Brown in the public press.

Ruben Carter, a boxer who was convicted of murder and served 19 years in prison before being exonerated, described the actions of the U.S. justice system like this: 
“The criminal justice system is not about justice. It is about success. Successful police officers are promoted. Successful prosecuting attorneys become judges. A successful judge goes to a higher court. … A successful judge...in our system of jurisprudence, is a careful judge, and not necessarily a wise one.”
I would be very surprised if the Grand Jury fails to exonerate Wilson in its decision. I would be surprised because the prosecution has already released to the public all the prejudicial testimony it can get its hands on and nothing that favors Michael Brown. The prosecutor in the Michael Brown case gives every evidence of being a successful prosecutor, but not a just one. 




Saturday, November 8, 2014

Why we didn't vote for anyone

Bernie Sanders at least has a coherent philosophy. But when he claims that the voters were fooled by Republican slander, he isn't giving voters enough credit for their intelligence. Sure, the country has lost faith in its government, but if they really want health care, they know they haven't a prayer with the republicans. I think people failed to vote because they couldn't see any difference between the Democrat and the Republican in their local elections. Obama has talked a good show, but major constituencies have doubts about his sincerity.

Obama has courted the Latino vote, but he is known in the Latino community as the guy who deported more Latinos than any other president. Deportation of a friend or loved one is a personal affront and a deep injustice. So Latinos look at him as someone who failed to keep his promises.

African-Americans look at our prisons and see their young men in chains. In the streets, they see their young men shot down with impunity by violent, heavily-armed cops or any other white man with a gun. They have no great vote for Democrats while cops were still assaulting African-Americans in Ferguson.

The progressives look at Obama as the guy who gave us half a national health plan and didn't fight hard enough for a one-payer system, which is the only way the system will work. Obama also ran on an anti-war platform, but actually escalated the war in Afghanistan. He killed Osama bin Laden, but anti-war voters did not buy into the Bush doctrine that we should fight terrorism around the world. Progressives understand war itself is terrorism, and we do not like to see our president pounding the drums for war. Progressives didn't like to see tax cuts as the major stimulus program. Bush gave us that. Finally, progressives saw Wall Street and the neocons from the Bush administration walking away unpunished from the disasters they caused.

So Republicans should not take comfort that the election was a referendum against Obama. Many of the people who dislike Obama do so, not because he is too liberal, but because he is not liberal enough.

The man in the middle will take fire from both sides.