The Silence around Ferguson

By Deroy Murdock

Friday, November 28, 2014

Millions of moms and dads will celebrate this Thanksgiving break with their kids. Alas, Michael Brown’s parents will mark this holiday without their late, world-famous son. That is a sad fact, whatever one thinks about the blazing controversy that has engulfed Ferguson, Mo.

Jermaine Jones’s family, too, will not share turkey and gravy with their son. On October 18, Jones, 29, stood with a few friends on a street in Berkeley, Mo., adjacent to Ferguson. Police say an unknown black male opened fire, killing Jones and wounding three other black men near him. (Strangely, Jones’s sister, Margaree Dixson, was shot fatally a half-mile away, just three hours earlier. In her case, too, police suspect yet another unidentified black man.)

“There’s too much violence going on,” Nicole Rice, Jones’s sister, told KTVI. “I can’t sleep. I can’t think. I can’t work. I can’t do anything wondering if my son will be a victim to the streets.”

Why has Jones’s death not unleashed riots and looting? Simple: Jones was killed by a fellow black man. Therefore, his death and his loved ones’ agony generate silence.

As a St. Louis County grand jury ruled Monday, Ferguson police officer Darren Wilson, 28, lawfully shot Brown, 18, in self-defense last August 9. This decision has fueled widespread chaos, including arson in several cities and infernos in Ferguson that cremated 25 local businesses. The national outrage still is at full boil over this white cop shooting an unarmed black man who acted very aggressively after stealing cigars from a convenience store.

But one can hear birds chirp while listening for public outcry over the deaths of black citizens killed by black perpetrators. Somehow, these black lives don’t seem to matter.

Ferguson is within the St. Louis metropolitan area. The FBI’s latest homicide-rate data ranked St. Louis as America’s fourth deadliest city. Its 38 killings per 100,000 residents in 2013 put it behind only Nos. 1 to 3, Detroit, New Orleans, and Newark.

Drawing on FBI figures and his own research, University of Missouri–St. Louis criminologist David A. Klinger counts 1,265 murders in his city from 2003 through 2012. Approximately 90 percent of those killed were black, reports Klinger, a former LAPD officer. Among these 1,138 decedents, roughly 90 percent (1,025) were slain by other blacks. Klinger found 32 blacks killed by cops, with 22 of them shot dead by white officers. So, across 10 years, white cops killed a whopping 2 percent of St. Louis’s black homicide victims. Investigations indicated that all of these police killings were legally justified.​

“While I understand the people are concerned about the use of deadly force by the police, by far — about 50 to 1 — more blacks in St. Louis are killed by other blacks as compared to white police officers,” Klinger told KMOX-TV.

Meanwhile, 98 percent of black murders go virtually unremarked. Where are the angry crowds demanding justice for blacks such as these, who were wiped out in St. Louis by other blacks in recent memory?

• Willie Earl Reed, 54, faces first-degree murder charges for taking a baseball bat and beating to death his girlfriend, Delores Hundley, 64, on March 24.

• Dominic Arrington, 38, allegedly stabbed to death April Fields on January 28. The 25-year-old business student just had dropped her daughter Skylar, 3, at her day-care center. Arrington had been on parole since 2004 for the 1995 killing of his then-girlfriend’s son, also age 3.

• Carnez Winslett, 36, was gunned down outside his birthday party on September 7, 2013. Police say Darnell Hollings, 21, shot ten bullets at Winslett and his guests. Winslett was wounded mortally. Three other black men were struck, but survived. Hollings also is among four men charged with non-fatally striking hot-dog vendor Edward Newa in the skull with a ball-peen hammer that they just had shoplifted from a Home Depot that August 21.

“What about the poor black child who was killed by another black child?” former New York City mayor Rudolph W. Giuliani correctly asked on last Sunday’s Meet the Press. “Why aren’t you protesting that?”

Giuliani also told the Washington Post:

    The danger to a black child in America is not a white police officer. That’s going to happen less than 1 percent of the time. The danger to a black child . . . is another black. . . . If my child were shot by a police officer, I would be very, very frustrated. I’d also be frustrated if my son were shot by a gangster in the street. But if the chances were — that my son would be shot by the gangster in the street — nine times out of ten, I’d spend an awful lot of time on the nine times out of ten.

The FBI’s Uniform Crime Reports demonstrate that in 2013, 90 percent of black murder victims were killed by other blacks. Among whites, 83 percent of those snuffed out died at the hands of other whites. Only 8 percent of blacks who were killed that year were slain by whites. Black-on-white murders were just 14 percent of all white homicides last year.

Milwaukee Police Chief Edward Flynn recently excoriated demonstrators who, predictably, rail against police shootings while ignoring black-on-black homicide. In a stirring statement to journalists, Flynn dramatically put all of this in perspective:

    I was following developments with a 5-year-old little girl sitting on her dad’s lap who just got shot in the head by a drive-by shooting. And if some of the people here gave a good goddamn about the victimization of the people in this community by crime, I’d take some of their invective more seriously. . . . Now they know all about the last three people who’ve been killed by the Milwaukee Police Department over the course of the last several years. There’s not one of them that can name one of the last three homicide victims we’ve had in this city.​

Left-wing racial-grievance–mongers scream that bigoted white cops lie in wait around every corner, jonesing to blast black men into their graves. Yes, there are bad policemen, just as there are bad priests and bad teachers. However, the overwhelming majority of officers work tirelessly and thanklessly to shield law-abiding black Americans from their natural enemies: black murderers.

 

Progressive Mythography

By Andrew C. McCarthy

Saturday, November 29, 2014

As Ferguson burned this week, the law books got a workout. Suddenly, grand-jury procedure was all the rage. Commentators better known for parroting the bromide that a prosecutor can get a grand jury to indict a ham sandwich went berserk when the sandwich on offer was a white cop and the grand jury refused to bite.

As it turns out, there was no need to thumb the legal treatises of Blackstone or Joseph Story. If you were going to hit the books, Jonah Goldberg’s Liberal Fascism would have served you better. Brilliantly illustrating modern liberalism’s roots in 20th-century progressivism — a movement as comfortable marching lockstep with Stalin as it was borrowing copiously from Mussolini — Jonah homes in on the centrality of myth. It is irrelevant whether an idea around which the Left’s avant-garde rouse the rabble is true; the point is the idea’s power to mold consciousness and rally the troops.

For the American Left, a bedrock myth is that white cops kill black kids. It derives from the overarching myth that casts racism as our indelible national sin. As Heather Mac Donald explains, citing exhaustive criminology studies, it flows seamlessly from the quackery that dismisses the disproportionately high incidence of violent crime in African-American communities as an illusion — as the product of police racism and the consequent hyper-targeting of black boys and men, rather than of racial differences in patterns of defending.

Darren Wilson was a white cop and Michael Brown was a black teenager killed in a violent confrontation with Wilson. Therefore, Brown was the victim of a cold-blooded, racially motivated murder, Q.E.D. That is the myth, and it will be served — don’t bother us with the facts.

Once you’ve got that, none of the rest matters. In fact, at the hands of the left-leaning punditocracy, the rest was pure Alinsky: a coopting of language — in this instance, the argot of grand-jury procedure — to reason back to the ordained conclusion that “justice” demanded Wilson’s indictment for murder. And, of course, his ultimate conviction.

I could spend the rest of the day rehearsing why these legal claims are specious. Particularly risible is the story line that the grand jury convened by St. Louis County Prosecutor Robert McCulloch was a sham — a story line that is itself an elaborate fraud.

Prosecutors can indict a ham sandwich, we were lectured, because the state’s burden in a grand-jury proceeding is so scant. Prosecutors need not prove the case beyond a reasonable doubt, as they must do at trial; they merely need show probable cause that a crime was committed — and by the person of whom it was alleged — and a trial should therefore be held. There was conflicting testimony about who the aggressor was in the Wilson–Brown confrontation; therefore, the story line goes, there was more than enough cause to indict Wilson and let the ultimate determination of guilt — and you can be sure they mean guilt — be made at a public trial. McCulloch instead used the grand jury to exculpate Wilson, a white (cop) privilege that a black defendant could never dream of obtaining.

To describe this as nonsense is a slander on nonsense. It is freely conceded that the grand-jury inquest into Brown’s killing was more a political than a legal exercise. That, however, was the result of intimidation by the Left’s race-mythology agitators — very much including the president and the attorney general of the United States. It was clearly not aimed at benefitting Wilson.

In a typical case, prosecutors rely on the low probable-cause threshold applicable in grand-jury investigations only for the purpose of limiting how much evidence they need to present. Contrary to another regnant myth, guilt is not in doubt in most criminal cases. Overwhelmingly, they are open-and-shut, often supported by post-arrest confessions. As a result, the grand jury can appear to be a pro forma exercise — a cookie-cutter procedure the Constitution requires before an accused person can be convicted of a crime he not only clearly committed but to which he will almost certainly plead guilty.

On the other hand, when convinced that the subject of an investigation either is innocent or is incapable of being proven guilty beyond a reasonable doubt, prosecutors do not present the case to the grand jury. That’s because their focus is the trial, not the indictment. If, after preliminary investigation, prosecutors do not assess the evidence as strong enough to convince a trial jury to render a unanimous guilty verdict, they dismiss the case on the basis of their own professional judgment — it never sees the grand-jury room.

At a proper trial, Wilson could not have been convicted of murder. That does not mean what happened was not horrible — it was. It does not mean Wilson is not civilly liable (although I doubt that he is). It simply means the circumstances of the shooting do not meet the high criminal-law standards for either intentional homicide or the criminally irresponsible causing of death.

The critics’ claim that Wilson’s innocence is put in doubt by “conflicting testimony” is legally and factually frivolous. Legally, our system resolves all doubt in favor of the accused — as the Left is apt to remind us when a terrorist is in the dock, this is called the “presumption of innocence.” Factually, the chatter about “conflicting testimony” falsely implies that all testimony is created equal. In reality, accounts given by anti-Wilson witnesses, where not patently fabricated, tended to be discredited by forensic evidence. The forensics, instead, corroborated the exculpatory testimony — much of which came from African-American witnesses, a fact that undermines the myth and therefore goes largely unnoticed. The grand-jury rules are more permissive than those that govern criminal trials, but prosecutors are still ethically barred from asking the grand jury to rely on testimony they believe is false, inaccurate, or unconvincing.

Add to that the facts that Wilson’s own testimony would have powerfully influenced a jury (as a credible defendant’s testimony always does), and that Wilson would have had the benefit of Missouri law, which looks favorably on the use of deadly force by police officers who are endangered in attempting to make an arrest. A jury would have acquitted Wilson in short order — assuming for argument’s sake that the judge had not dismissed the case for lack of evidence before letting it get to jury deliberations.

If the Michael Brown shooting were an ordinary case, a grand jury would never have been asked to consider indicting Officer Wilson. McCulloch, the chief prosecutor, directed his office to present it to the grand jury because it was not an ordinary case — because it was a racially charged case in which Al Sharpton’s notorious “No Justice, No Peace” demagoguery was amplified by the community organizers in the White House and the most politicized Justice Department in American history.

Ordinarily, prosecutors unilaterally decide whether or not to seek an indictment and, in the rare instance when anyone asks why they decided as they did, are restrained by investigative-secrecy protocols from explaining their decision. But McCulloch was understandably unwilling to make a unilateral judgment for which he would have been unable to defend himself from inevitable charges of racism. He thus directed his office to make an exhaustive presentation to the grand jury. It was both a Pontius Pilate–style abdication that made the community, rather than himself, accountable for the charging decision; and a vehicle that, with the court’s blessing, enabled him to disclose the voluminous evidence justifying the decision not to indict.

All very reasonable, but let’s not pretend reason has anything to do with what happened in Ferguson this week. In Liberal Fascism’s focus on myth, Jonah recalls Mussolini’s assertion, “It is faith that moves mountains, not reason. Reason is a tool, but it can never be the motive force of the crowd.” The crowd in Ferguson was moved to riot on the article of a false faith that condemns America and its police forces as incorrigibly racist. It is from this condemnation that all purported “reasoning” proceeds.

Such reasoning dictates that our constitutional right not to be indicted in the absence of just cause should be subordinated to the mob’s demand for a public trial. Succeeding in that legerdemain, it next dictates that our constitutional right not to be convicted in the absence of proof beyond a reasonable doubt be subordinated to the mob’s demand for a guilty verdict.

Such a verdict that would have had only the most tangential connection to the tragedy of an 18-year-old’s death or a police officer’s well-founded fear for his life. But it would have fed the myth.

What’s at Stake in Mann v. National Review

By Charles C. W. Cooke

Wednesday, November 26, 2014

Yesterday, in the heart of Washington, D.C.’s Judiciary Square, the D.C. Court of Appeals heard oral arguments in the ongoing case of Michael Mann versus Free Speech. Mann, a professor at Penn State and the progenitor of the infamous “hockey stick,” is currently suing both National Review and the Competitive Enterprise Institute for having criticized his global-warming research and advocacy. Together, the two cases have raised a host of crucial First Amendment questions, among them: “At what point does harsh criticism become libel?”; “how robust may debate be within a free republic?”; and “can juries be expected to arbitrate genuine differences of methodological propriety and political opinion?”

Legally speaking, we are still very much in the procedural weeds. As of now, the court is being asked to decide only whether Mann’s claims are so weak that the case must be dismissed on First Amendment grounds before it can even proceed to trial. The District of Columbia, while taking no position on whether National Review’s appeal should succeed per se, has recognized what is at stake and has taken the position that the First Amendment is important enough to warrant an immediate appeal when a trial court refuses a motion to dismiss in a case like this one involving speech on a matter of public controversy. The District hasn’t taken a position on the merits of the appeal, which is fair enough. One wouldn’t expect the city to take a view either way. Nevertheless, it remains the case that Washington, D.C., is weighing in to support important procedural protections for First Amendment rights. Bravo.

Representing the Competitive Enterprise Institute, Andrew Grossman laid out more clearly what was at stake for the District of Columbia — and the country at large. Urging the court to throw the suit out, Grossman noted that the district’s anti-SLAPP law, targeted at “Strategic Lawsuits Against Public Participation,” requires a plaintiff to show by at least a preponderance of the evidence that his claims are ultimately likely to succeed before a defendant can be subjected to the burdens of trial. That is precisely because lawmakers within the district wished to discourage the bringing of frivolous libel cases such as this one that chill free speech by imposing ruinous litigation costs. The plaintiff’s case, Grossman argued, does not come close to meeting the intended threshold. Mann’s lawyer, John Williams, disagreed, contending that, in order to satisfy the rules, Mann needs only to show that there is a prima facie chance that he could win the case if his alleged facts were to be verified. Given the language of the statute that requires an actual “likel[ihood]” of success and the position that the D.C. government has taken, Williams’s argument faces an uphill battle. The unspoken question, then: Does the nation’s capital really wish to become a magnet for every disgruntled and litigious public figure? And if it does, why bother having an anti-SLAPP law at all?

At the root of this sorry affair is the crucial question of whether Americans are free to lambast public figures on matters of great import. Michael Mann claims that Rand Simberg and Mark Steyn have made “provably false” statements that a jury would be capable of objectively verifying without intruding on free and robust political debate. The Competitive Enterprise Institute and National Review believe that this is abject nonsense, and that Steyn and Simberg have merely criticized the merits of Mann’s scientific work in a manner that is clearly protected under the First Amendment. “Why,” Judge Beckwith inquired early on in the oral arguments, “isn’t it reasonable to conclude that Simberg was saying Mann falsified data?” In other words: By describing Mann as a fraud, wasn’t Simberg making a specific and objectively verifiable claim about an event? Grossman responded bluntly to the query: “Because he didn’t say that.” That much, Grossman argued, was evident “from the language.” Instead, Grossman proposed, Simberg simply stated that Mann’s techniques were akin to “data manipulation” — that is, that Mann had presented his findings in a slippery and underhand way but that he was not being accused of actually falsifying his results. Resolving the truth of that assertion would require a jury to wade into an area of highly contested and contestable opinion. Simberg’s charge, Grossman noted, included a hyperlink to a discussion in which various critics drew different conclusions from the same underlying facts. Because such disagreements constitute “different interpretations” and “subjective views,” and because debate over the merits of scientific techniques is protected under the First Amendment, Grossman proposed, “there can be no liability” for such statements. Indeed, he added, there is nothing to distinguish Simberg’s words from the sort of “sharp-elbowed commentary you hear every day on cable news” and “on the Internet.”

National Review’s counsel, Michael Carvin, agreed, acknowledging that the criticisms advanced by Steyn and Simberg were indeed “caustic,” but that they were not materially different from anything one might “see every day” from people arguing passionately over “crime or the economy.” There is a key distinction, Carvin argued, between one’s charging that a man has literally “falsified” his data — electing, for example, “to change a 5 to a 10” — and one’s contending that a man is engaging in faulty or misleading analysis by comparing “apples to oranges,” drawing the wrong inferences from his evidence, or basing his approach on questionable science (whether “tree ring data [is] an accurate proxy” for temperature, Carvin noted, is debatable). The defendants believe that Mann’s work is “intellectually bogus,” Carvin explained. Which is to say that they “are saying he did a bad thing: he misportrayed the data.” That “bad thing,” Carvin continued, is “misleading” in the same sense as is an economist who sells ostensibly encouraging job numbers by ignoring the fact that there are many actors who have dropped out of the labor market altogether. The plaintiffs are not accusing Michael Mann of having “falsified data in a way that a jury could figure out,” Carvin noted. Nor are they making any claims that are sufficiently specific as to be actionable. In consequence, he insisted that the court must dismiss the case under the First Amendment.

Later, Carvin made explicit what is at stake in this case. “We don’t allow juries to decide scientific questions,” he observed, before asking rhetorically whether anybody would consider it to be acceptable for a court to decide whether “vaccinations lead to autism.” “No court in the history of Anglo-American jurisprudence has allowed a scientific question to go to a jury,” he warned. “If this court goes down this road,” he added, “it will turn every political debate — gun control, voter ID — into what a jury thinks about one person’s interpretation of data.” Later, in his brief rebuttal, Carvin would warn gravely that the “First Amendment allows name calling, and it only permits juries to consider facts.” “The consequences” of the court’s refusing to throw out the case, he submitted, would be to “open everyone up to libel cases if they said the word ‘misconduct.’” This, he augured, would turn debates on matters of public policy — matters as diverse as “immigration and economics” — into legal trials. In sum, then: Michael Mann is attempting to use the courts to fight political battles that he cannot win through argument alone.

Mann’s lawyer, John Williams, rejected both this claim and this line of reasoning, arguing that all such judgments are ultimately “factual” and that accusations of “fraud” can certainly be determined by juries. If charges of legal fraud can be adjudicated in court, Williams contended, then all allegations of “fraudulence” are by their nature “of fact and not opinion” — even in public-policy debates. Moreover, Williams contended, the “context” of the defendants’ critiques suggested that they were being published as ostensible truth, rather than as opinion. “All of the allegations against Mr. Mann,” he suggested, “were [presented] as facts.” In consequence, he argued, there was nothing wrong with asking a jury to adjudicate between varying interpretations of the same data. Thus did Mann’s lawyer confirm Michael Carvin’s fears. And, possibly, the court’s, too. When Williams proposed that he should be permitted to make his full case, the bench mused on the possibility that the city’s anti-SLAPP legislation “wouldn’t be doing very much work” if he were indulged.

Getting to the heart of the matter, Judge Ruiz honed in on the central question of “what is meant by ‘data manipulation,’” reminding the court that enthusiastically pointing out “bad reasoning” is not illegal in the United States. “Which,” she inquired of Williams, “are the particular statements — viewed contextually — that you regard as defamatory or actionable.” In response, Williams read a list of words and phrases — among them “wrongdoing,” “molesting and torturing data,” and “fraud.” As has already been established, however, the defendants hold that these terms relate to the manipulation of evidence rather than its falsification. Moreover, as Carvin pointed out in his rebuttal, the EPA has endorsed the word “fraud” as a rhetorical term not uncommonly deployed in scientific debates — without any serious consequences.

Judge Easterly, meanwhile, wanted to know how the plaintiffs could demonstrate “actual malice” if the defendants “genuinely” believe that “[man-made] climate change is a hoax.” “We don’t have to get to the question of whether climate change is real to look at the accusations,” Williams shot back. This did not seem to convince. “You need clear and convincing evidence for malice,” Easterly said. Simply stating that your critics disagree with you is insufficient.

The “question for the court,” Judge Ruiz summed up toward the end of arguments, is: “Could a jury look at this and determine that this is verifiable fraud?” Hopefully, the court will answer no, holding instead that such subjective and political questions are best arbitrated by the public and not by the legal system. If it does, Mann’s options will narrow dramatically. In the case of a dismissal, Mann would still technically be able to apply for en banc review, or even to petition the Supreme Court directly. The chances of either court’s electing to take up an appeal from him, however, seem slim. And rightly so. Mann is indulging here in a dangerous game — in a petty and quixotic attempt to recruit the nation’s courts to his side and to forestall any criticism of himself and his work. If the First Amendment is to be worth the paper it is written on, those courts should refuse to be co-opted. Rather, they should dismiss the case as soon as is possible, reminding us as they do that, in America, robust public debate is not actionable, but worthy of celebration instead.