Sunday, December 7, 2014

Erwin Chemerinsky's Lament Over Ferguson Grand Jury

In today's Orange County Register, UC Irvine Law School Dean Erwin Chemerinsky laments the fact that the Ferguson grand jury declined to indict Officer Darren Wilson for the shooting death of Michael Brown. It's bad enough that this comes from one who has never had to make an arrest. What makes it worse is that it comes from one who is a nationally-renowned legal expert.

To buttress his argument, Chemerinsky points out that the grand jury almost always results in an automatic indictment since the evidence need only show that it was sufficient to send the case to trial as opposed to beyond a reasonable doubt to convict.

But what if the evidence establishes that the target of the investigation acted in self defense? That is what happened with the Ferguson grand jury, Counselor.

Yes, it was highly unusual that the DA used the grand jury to conduct a full investigation even allowing Wilson to come in and testify. It must be remembered, however, that this case was under a national microscope with tensions running high, the Justice Department-and the President- looking over the DA's shoulders, and violence ready to break out. The evidence presented to the grand jury was gathered by state and federal prosecutors working together. The FBI was involved at every step.

Here is the point that Chemerinsky misses: A prosecutor must first of all believe in the suspect's guilt. Second, the prosecutor must believe he or she can take the case to trial and convince a jury beyond a reasonable doubt that the suspect is guilty. If the evidence points to innocence, it would have been a violation of professional ethics to seek an indictment; indeed, it would have been a miscarriage of justice.

Chemerinsky also points to the Treyvon Martin case, in which Martin was killed by a "self-appointed neighborhood watchman", George Zimmerman and implies this is another case where justice was thwarted when Zimmerman was acquitted. Sorry, Counselor. The prosecution failed to rebut Zimmerman's version of events, and the preponderance of evidence not only pointed to reasonable doubt but to self defense. Pointing out Martin's age (17) is misleading. A 17-year-old is fully capable of beating up and/or killing an adult. A verdict of not guilty was the only proper outcome.

As for the Kelly Thomas beating death in Fullerton, California, also cited, I felt the officers should have been convicted. In addition, the Rodney King beating, in my view, was justified up to the point that he stopped fighting the officers. (Prior to the video beginning, King was fighting the officers and doing so quite effectively.) King was hit 56 times with night sticks. At some point when he was on the ground, the blows should have stopped and the handcuffs applied.

Chemerinsky also cites the LAPD Ramparts Division scandal, which involved planted evidence and perjured testimony by officers. It is true that prosecutors have to work with law enforcement and are placed in an unenviable position when an officer is accused of wrong doing and/or committing perjury. He claims that LA prosecutors did nothing even when they knew officers were lying on the stand. Granted, my own law enforcement experience was at the federal level, but I never encountered an asst US attorney who would have countenanced perjury by one of his or her witnesses-including law enforcement, nor would I have expected it. I am not challenging the information he found in his study; I am saying that this is not the rule.

To sum up, I get the impression that Chemerinksy was disappointed by the Ferguson grand jury decision and by the Zimmerman verdict. That may be understandable from the average Joe, but when innocence is proved, it is hard to fathom on the part of someone who is supposed to be a legal expert.

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