» Arizona Cases, Government Rants, Juries, Police, Prosecutors » When It Isn’t A Cop

When It Isn’t A Cop

Police officer Darren Wilson wasn’t indicted for shooting Michael Brown.

You shouldn’t be surprised, as Rick Horowitz concludes. Scott Greenfield explains the big lie too many people still believe, the idea that the grand jury in the case isn’t just an indictment machine built into a Potemkin Village of due process for just one case so the masses can go on about their lives. Gideon explores the racial aspect, and Jeff Gamso addresses the silliness of one grand jury dog and pony show promoter.

Me? I’m just envious.

Here in Arizona, the accused has a due process right to a fair and impartial presentation of the evidence before a grand jury. When the state fails to do that, defense counsel can file a motion to remand arguing the state denied the accused that right. There are all kinds of wonderful cases saying how a grand jury’s ability to determine a case must be based on accurately depicted facts, how the prosecutor plays the role of “gatekeeper” in determining what evidence the grand jury will hear, and how the prosecutor must present facts in the appropriate context so the grand jury will have the “entire picture” upon which to base their decision. The state cannot exaggerate facts or misquote key witnesses as to mislead the grand jury. Here’s one particularly great quote from a published opinion:

The prosecutor, as an officer of the court as well as the lawyer for the state, is not just an adversary of the person under investigation. The interests of the prosecutor and the state are not limited to indictment but include serving the interests of justice; thus, the prosecutor’s obligation to make a fair and impartial presentation to the jury has long been recognized.

The prosecutor’s obligation includes informing the grand jury about possible exculpatory evidence, and it is fairly common in Arizona for a defense lawyer to present something called a Trebus letter to the state prior to a grand jury presentation. It’s a letter informing the prosecutor of clearly exculpatory evidence and often indicating that the accused wishes to tell his side of the story to the grand jury. Basically, the process in Arizona is, in theory, supposed to be sort of like what happened in Ferguson.

It’s bullshit, of course, and it pretty much never happens that way.

There are never all sorts of helpful defense witnesses called to testify. Here, the state almost always calls just one cop, and he usually testifies not just to what he knows first hand, but also about what everyone else said or saw or did. You can probably imagine the spin everything receives. When the state does bring up exculpatory evidence, there’s all sorts of qualifying language. They’ll preface information presented in a Trebus letter with a statement like “the suspect hired a lawyer who wrote us a letter, and this is what the lawyer said.” Then, they’ll elicit every shred of information they can from the testifying officer calling into doubt the facts presented by the defense.

One motion to remand that I filed involved a case where impaired driving was a key element. The prosecutor failed to present evidence that four eyewitnesses were adamant that there was no impaired driving. In another, a self-defense case, the prosecutor told the grand jury my client should have retreated. Cases here make it clear that “[t]he law of Arizona does not require a person to retreat before he may act lawfully in self-defense.” In one case where my client was accused of assaulting a cop, the state didn’t tell the grand jury that multiple other cops disagreed with the victim cop, that eye-witnesses contradicted the victim cop, and that the testifying cop actually said the opposite of what the eyewitnesses he did interview actually said. I could really go on forever, as it feels like I see stuff like that and worse monthly, maybe even weekly. The trial courts deny motions to remand seemingly only pretending to have read them, and appellate courts appear to deny them mostly without even that courtesy.

In those rare cases where the presentation isn’t just a farce, the grand jury still indicts. In the even rarer cases where the first grand jury doesn’t, prosecutors may take it to another. Or maybe even farm it out to another county where they think that popular, powerful defendants and weak cases aren’t likely to impede an indictment. Sound too crazy to be true?

The grievances against Maricopa County”s most infamous disgraced prosecutors, Andrew Thomas and Lisa Aubuchon, involved all sorts of claims arising from their abuse of the cooperative citizens of the grand juries they used in their schemes. What they did was what still happens in countless cases here, just not as often to the powerful. Like I said, Thomas and Aubuchon got hammered for targeting the powerful.

They’d still be around if they’d kept targeting the Michael Browns of the world with charges and had avoided rocking the institutional boat by trying to catch fish their size. What’s especially sad is that the judges they targeted probably denied motions to remand despite presentations more egregiously unfair than the ones it’d take to indict those same judges and also the politicians Thomas and Aubuchon had set about to destroy. The problem is always power, which is inextricably tied in with race in this country at this time.

Truth be told, Darren Wilson got what everyone in Arizona deserves. If Michael Brown was a black cop or a black politician or a black judge, he wouldn’t have. Darren Wilson would be in custody. He would’ve been in custody from the moment people had realized who he’d killed. All things the same, had Darren Wilson been a black cop rather than a white one, however, he still would’ve been okay. Any cop would’ve enjoyed the rights that others can only admire from afar. The rest of us are stuck looking at long-ignored court opinions that only really apply to individuals far better connected than ourselves. We lose. The powerful don’t.

I once heard someone joke that, for proof that we have officially graduated from the dark days of racism, look to the tiny percentage of black cops who are in prison. Although I am admittedly unsure of the precise number, I have no doubt that’s true and that it’s a number far smaller than even the number of middle-aged, fairly affluent white men in prison.

Again, the problem is power. It will always be power. It’s race too, but fixing that will fix nothing. When it’s a cop, the system looks like the sort of thing we all deserve. When it isn’t a cop, anything goes.

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3 Responses to "When It Isn’t A Cop"

  1. […] hesitant to write a post making a similar point to my last one, but as one article after another comes out discussing racism in this country in the wake of […]

  2. Kevmo says:

    That’s an interesting take. Many of the Wilson detractors who are outraged at the grand decision believe the system did not work in this case precisely for the reasons you argue that it did work. The system, they argue, unjustly favors officers by granting them inappropriate advantages.

    I suppose both of you would agree that the state has a tendency to empower the grand jury process when it benefits itself. And that is clearly a problem.

    However, I’m inclined to believe that the present detractors don’t really have a problem with the process but are just uneasy about the outcome. It’s easier to employ soft arguments about the injustice of the system than to cite hard facts that would call into the question the specific decision. So Warren should go to trial not because of facts A, B and C but because the system can’t be trusted. Or course, in their mind, a trial offers no more assurance of their brand of “fairness.” Compliments of Zimmerman.

    To be honest, I’m a little shocked at the ease some of these “social justice” adherents sweep aside the due process of the accused. I have yet to hear a viable and fair response to the question of what they would have the state do now.

    1. Matt Brown says:

      I think you’re right. I find that most people who have any reason to care about the system inherently can’t get past their obsession with outcome. Victims feel wronged, see guilt, and want punishment. It’s the same with those who identify with victims or see something bigger on the line, as well as those who just have a powerful natural desire to punish. On the other hand, defendants feel wronged, deny guilt, and want fairness. Everyone takes it to an extreme and loses perspective because, for the most part, they wouldn’t be paying attention at all if there wasn’t some compelling thing that made it matter to them.

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