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Post Grand Juries and Two Non-Indictments
Created by John Eipper on 12/05/14 1:43 PM

Previous posts in this discussion:


Grand Juries and Two Non-Indictments (Massoud Malek, USA, 12/05/14 1:43 pm)

The purpose of a grand jury is to help the prosecutor decide whether to bring criminal charges against a suspect in a crime. A grand jury's decision is not the final step in a case. Prosecutors use grand jury proceedings as test-runs for trials. However, if they strongly disagree with a grand jury, they may ignore the decision. Unlike juries in a trial, the members of a grand jury must remain anonymous. Also, unlike a trial in which the decision must be unanimous, the grand jury's verdict can be based on the opinions of only two-thirds of the jurors.

In the last few weeks, the grand jury was used to show the world that a white police officer in Missouri has the privilege of killing a young black boy, or a police officer in New York has the right to use a move (chokehold) on an unarmed black man, leading to the man's death.

The 23 or 18 anonymous members of the grand jury in New York believed the white officer when he told them that he used a wrestling move, learned in the police academy on the black man accused of selling cigarettes illegally. I guess the prosecutor forgot to tell the jurors that the NYPD banned chockholding.

What President Obama didn't tell Americans right after the officer who killed the black boy was cleared of any wrongdoing by the grand jury, is that the prosecutor in the case could ignore the racist decision in Missouri and bring charges against the killer of the black boy.

I hope this time President Obama, who has told us that African-Americans are frustrated by a legal system that discriminates against blacks, would ask the prosecutor in the case of the dead cigarette seller that he should ignore the grand jury's decision and give a meaning to the phrase "justice for all."

JE comments: What is a Grand Jury supposed to do?  The US has been receiving quite the Civics lesson in the last ten days, as separate Grand Juries declined to indict the police officers in Ferguson, Missouri and New York City.  There are two issues here:  whether or not the officers would likely be found guilty in a criminal trial, and the wider cultural problem of race in the US.  There is not doubt that African-Americans perceive unfair treatment from the police, and their frustration is coming out in demonstrations around the nation.  This is the worst race-related unrest in the US since...Rodney King?

The Grand Juries in both cases decided there would be little likelihood of a conviction.  But this does not stop the public's rage from raging on.

I heard a discussion on Terry Gross's Fresh Air (3 December), with journalist Jeffrey Toobin.  Mr. Toobin did a good job of putting the legal issues in perspective.  His conclusion was that the chance of a Federal conviction for violating the victims' civil rights is also nil.  Scroll down half way for Toobin's remarks on the Ferguson case:



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  • Thoughts on Ferguson Case (Joe Listo, Brazil 12/07/14 5:50 AM)
    I ask WAISers if, in fact, a crime was committed in Ferguson. In reviewing the facts behind what occurred in Missouri, we have that the deceased (Michael Brown) attacked a police officer and kicked a squad car, tried to flee the scene, failed to obey when ordered to stop, turned around and came in the direction of the police officer who at that point had unholstered his gun. Is it fair to assume that a person who runs in the direction of a police officer, after having already attacked him, is in a state of mind that would lead to a friendly conversation? I would venture to say "no." He charged the police officer with the clear intention of attacking him.

    When confronted with the situation of having again to deal with his aggressor, the police officer responded in the way most of us would: stop the aggressor. He fired because he knew Brown would not stop, since it is a fact that he had ignored previous commands to do so.

    Why it was not logical for Brown to comply with the officer´s orders is beyond my comprehension. He could have chosen not to resist, and later press charges against the Ferguson police if he thought his civil rights had been violated. However, he chose to confront a legally constituted authority, which resulted in his death and problems for the police officer which will last for the rest of his life.

    Following these events, the leftist American media did their best to create a climate of revenge, crying "racism" all over the country. Were the events in Ferguson triggered by racism? I would say "no." But we have to put ourselves in the police officer´s shoes. Brown attacked the officer and was about to attack him again. Regardless of color, if a heavy-set man like Brown runs in our direction for a second attempt on our physical integrity, would we not stop him? What were the options available for the officer when Brown kept coming at him even knowing that he had already drawn his gun? In order to keep coming at a police officer with gun in hand, a person must be in an altered state of mind--either drunk, on drugs or both.

    I do not think the police officer acted differently from any other law enforcement official around the world. A Brazilian was killed by the UK police a few years ago, and I did not see anyone mentioning racism when the police later stated he was shot because he "looked like a terrorist." In Brazil, you kick a police squad car or fail to stop when told to and you are dead, no matter your color. But in the US it seems police officers have to put their lives at risk when dealing with African-Americans to avoid the mayhem we saw in Ferguson.

    JE comments:  The crux of the Michael Brown matter is that it reopened racial wounds in the US, a phase in our history that had been pronounced "over" with Obama's election in 2008.  The facts surrounding the case are secondary--unless, of course, you are Michael Brown or Darren Wilson.  African-Americans continue to feel oppressed by the police (institutional racism), and similar incidents on Staten Island (and most recently, Cleveland) only underscore this perception.

    As Joe Listo reminds us, there's no doubt that Brown would still be alive if he had complied with Wilson's orders.  But this doesn't lessen the political and cultural significance of the event.

    Massoud Malek (next in queue) has a very different take on the Ferguson-NYC-Cleveland cases.

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    • Thoughts on Ferguson and NYC Cases (Bienvenido Macario, USA 12/08/14 7:06 AM)
      Here's my take on Ferguson, NYC and other recent police-involved shootings and deaths. Basically there are two types of police actions. One is protecting the law and the other is enforcing the law. Protecting the law suggests the members of the community are disciplined, middle-class, and above all they trust and respect the police.

      But enforcing law is necessary for the police to do their job. Telling the citizens "please obey the law" just won't cut it. Here the police must be assertive and must be prepared to give chase if the "person of interest" refuses to obey the directions of an agent of the law and decides to flee. The enforcement of the law has a higher chance that baton, Taser, tear gas and guns might be used. People could get hurt or even die.

      I would assume an African-American dressed in a suit in the financial district of a major city would not be reacting the same way as that of the suspects in Ferguson and New York City.

      As DC Rep. Eleanor Holmes Norton has said, in certain areas of American towns and cities, young African-Americans have grown distrustful of the authorities. I don't know what caused it or how to fix it.

      Now if we look at these cases and compare them with those happening in Brazil, Mexico and the Philippines, one would say suspects in the US have far more rights than in developing countries.

      A case in point:  after Pres. Obama left the Philippines on April 29, 2014, a born-again Christian pastor, Pablo Martínez, was killed in a suspicious vehicular accident. He was riding his bicycle along Roxas Blvd, when an SUV hit him from behind. But a witness claimed the SUV deliberately ran over him after he fell from his bicycle. Yet the police ruled it "an unfortunate accident."

      The problem is that Pastor Martínez was one of the 16 officers and soldiers who escorted Benigno Aquino Jr. out of the airplane when he was assassinated on August 21, 1983. In February 2006, former Sgt. Pablo Martinez revealed in a Time magazine interview that it was Eduardo Cojuangco, the cousin of Cory Aquino, who ordered the murder of Aquino, Jr.

      Even more interesting is the fact that Pres. Aquino III refused to entertain Pablo Martínez's offer to testify in court and implicate his uncle Eduardo "Danding," the 10th richest "Filipino" with a net worth of $1.4 billion as of July 2013. Martínez's son, who is in the Philippine Air Force, thinks his father was murdered.

      JE comments: I'm not sure I see a clean distinction between "protecting" and "enforcing" the law.  Neither is necessary if everyone is already in compliance. This doesn't happen anywhere--except perhaps in Singapore?

      To the race factor of policing in the US and presumably elsewhere, we should also consider the issue of class. Will you have better luck with the cops if you're a rich, professional-looking African-American, or a poor Appalachian white?  Bienvenido Macario's hypothetical Black guy in a business suit might react differently if approached by the police, but the police would probably treat him differently, too.

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      • Thoughts on Ferguson, NYC Cases (Richard Hancock, USA 12/09/14 3:40 AM)
        The Wall Street Journal of November 25th has an opinion on the Ferguson matter in an article, "The Other Ferguson Tragedy," by Jason L. Riley, an African-American who is an author and a member of the WSJ editorial board. He writes, "The black teen in Ferguson, Mo., robbed a store, attacked a white police officer and was shot dead while resisting arrest. That was the conclusion of a St. Louis County grand jury that brought no charges against the officer after considering all of the physical evidence, along with eyewitness accounts from blacks in the vicinity of the confrontation."

        He adds: "According to the FBI, homicide is the leading cause of death among young black men, who are 10 times more likely to be murdered than are their white counterparts... Blacks are just 13% of the population but responsible for a majority of all murders in the US...Blacks commit violent crimes at 7 to 10 times the rate that whites do. The facts that their victims tend to be of the same race suggests that young black men in the ghetto live in danger of being shot by each other, not cops... The police are in these communities because that's where the emergency calls originate, and they spend much of their time trying to stop residents of the same race from harming one another."

        He continues, saying "Blacks that bring up this problem are sell-outs. Whites who mention it are racists. But so long as young black men are responsible for an outsize portion of violent crime, they will be viewed suspiciously by law enforcement and fellow citizens of all races."

        I think that Mr. Riley has stated the Ferguson problem correctly. The New York City problem of police arresting a large black man with the use of a chokehold which resulted in his death is another matter. I think that most people who saw the pictures of police action in that case will agree that the police made an overuse of force, although they had no way of knowing that the victim suffered from asthma.

        As a soldier in WWII, I was a ward man in a Tokyo hospital, working with shell-shocked soldiers immediately after Japan surrendered. We sometimes used a chokehold to subdue a large strong man. Fortunately, we didn't kill anyone. When I was a boy on a ranch in New Mexico, the standard method of subduing a wild bronco was to rope him around the neck and choke him down. You could then tie up one of his feet and start the process of breaking him to ride. The chokehold is harsh but effective.

        I don't know what the answer is to this problem of black criminals. We should start by having more black policemen. I think that it is terribly wrong to have no black policemen in Ferguson, where the population is 70% black.

        I lived in Las Cruces, New Mexico for 11 years, where the population was 65% Hispanic. The politicians there made a deal that the Sheriff should always be Hispanic while the county judge was non-Hispanic. One of the Hispanic sheriffs was extremely corrupt but another one, named Viramontes, was one of the best lawmen that I have ever known. A great many of the criminals were Hispanics and whenever there was a standoff, Sheriff Viramontes would appear on the scene and, in most cases, was able to talk the criminal into surrendering. He was a revered lawman in the county who served for more than 20 years.

        My feeling is that a great part of crime in the US stems from boys who belong to families without men. Some women can raise boys to be good citizens, but many cannot. I think a boy especially needs to belong to a family with a reputable father figure. I also feel that we need more male teachers in our school systems, which tend to be served almost exclusively by women teachers. Men can more easily control boys because, as in the case of horses, the colts do not challenge the stallions.

        I discussed this problem with the Dean of Education at the University of Oklahoma. He agreed with me, but said that most men who made a career of education didn't stay long in the classroom but moved up to administrative positions. He said that it was not politically viable to pay male teachers more than female teachers. Perhaps the solution is to raise all teaching salaries which would attract more and better people, both male and female.

        JE comments: I absolutely agree with Richard Hancock's last sentence--but unfortunately, the trend seems to be going in the opposite direction.

        Mr Riley's WSJ op-ed makes the "Blacks should just behave" argument, which strikes me as hopelessly naive. Will marginalized African-American youth pick up the Journal and suddenly become model citizens? Note too that African-American commentators have the "right" to write such things, whereas a white person does not. I am reminded of the now-disgraced Bill Cosby.  "Do as I say, not as I do."

        How many in WAISworld have watched the Eric Garner chokehold video?  I did.  Did Garner resist arrest?  Yes.  Was he also the victim of homicide?  You make that judgment:


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  • on Police Accountability (Massoud Malek, USA 12/07/14 3:15 PM)

    How could a prosecutor possibly prove that the only purpose for a white police officer who shot an unarmed black boy was because the officer wanted to deprive the boy of his civil rights?

    The Fourth Amendment of the US Constitution protects Americans, including blacks, against arbitrary arrests. It enforces the notion that "each man's home is his castle," an expression that dates back to Roman times.

    In February 2012, without a warrant, an officer chased an 18-year-old unarmed boy into his grandmother's home in the Bronx and shot him dead in the bathroom. After a first indictment of the officer by a grand jury was thrown out by a judge due to a technicality, a second grand jury declined to re-indict the officer in 2013.


    The Eighth Amendment to the US Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

    In response to my post of 5 December, John E. wrote:

    "I heard a discussion on Terry Gross's Fresh Air (3 December). Journalist Jeffrey Toobin did a good job of putting the legal issues in perspective. His conclusion was that the chance of a Federal conviction for violating the victims' civil rights is also nil."

    Mr. Toobin's conclusion that officers get the benefit of the doubt when they kill unarmed blacks was based on the 1989 Graham v. Connor case. In the ruling, William Rehnquist, who wrote the majority opinion, stated:

    "It's not whether the officer is objectively correct when he uses force; it's whether he subjectively believed that he was right in the moment he did."


    Most jurors are not aware of the fact that in the same 1989 ruling, the Court also laid out three criteria in police brutality cases: Qualified immunity might be granted where the person 1) actively resisted arrest; 2) posed a physical threat; or 3) fled arrest.


    According to one study, 41 US officers were charged with either murder or manslaughter in connection with an on-duty shooting between 2005 and 2011. For comparison, the FBI reported a total of 2,718 "justified homicides" by law enforcement officers during that seven-year time period.

    Based on this report, police officers shoot and kill more than one person a day. Because of the Supreme Court ruling of 1989, the overwhelming majority of those killings are deemed justified before the case ever reaches a jury.


    JE comments:  Add to this the "Blue Code" or "Blue Wall of Silence," by which police officers refuse to testify on a colleague's wrongdoing, and police can often get by with murder.  I agree with both Massoud Malek and Joe Listo, even though their positions are incompatible.  Many police officers are bullies (it's a career that attracts those who seek power over others), but precisely for this reason, it's unwise to resist arrest.

    President Obama has called for a requirement for police to use body cameras.  So the biggest legacy of Michael Brown's and Eric Garner's deaths may be an increase in our surveillance culture.

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    • Federal Civil Rights Cases (Randy Black, USA 12/08/14 2:10 AM)
      In his 7 December post, Massoud Malek posed a question that in our group normally leads to the person who asks offering a theoretical answer.

      Massoud asked: "How could a prosecutor possibly prove that the only purpose for a white police officer who shot an unarmed black boy was because the officer wanted to deprive the boy of his civil rights?"

      This question strikes me as one of those "have you stopped beating your wife"-type questions, to which any answer will lead to a bad outcome for the fellow being asked.

      But then, Massoud offers not his answer or opinion but instead speculates by referring to seemingly unrelated cases from years past.

      Massoud refers first to "Roman times," then to a case from 2012, which again has no relationship to the Ferguson, Missouri case that was no-billed, and then to a bailment case, again no relationship to Ferguson. Next, Massoud mentions a 1989 case and finally refers to the number of cases where police officers shot and killed 2,718 criminals over a 7-year period in a nation of 315,000,000 legal and illegal residents. This is in a nation where 93 percent of murdered African-Americans are murdered by other African-Americans.

      I am still waiting to hear Massoud's real position on the matter of the adult in Ferguson who robbed a convenience store, was soon seen marching down the middle of a neighborhood street, confronted by a police officer and told to move to the sidewalk but did not, assaulted that police officer and was shot and died as a result of his own actions.

      JE comments: Randy Black's position on the Ferguson incident is crystal clear.  I understood Massoud Malek's question as purely rhetorical, a comment on the difficulty of prosecuting a police officer for civil rights violations.  For starters, the prosecution must prove that the officer "deliberately" made an effort to deprive the victim of his or her rights.  Barring a recording or video (or incriminating racist text messages), I don't see how this can happen.

      Yesterday (December 7th) was not a Day of Infamy for Randy Black--happy birthday, Randy!

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      • Killings by Police--US, UK, and Japan (Paul Pitlick, USA 12/11/14 1:28 AM)
        In his post of 8 December, Randy Black cites an interesting collection of numbers: "police officers shot and killed 2,718 criminals over a 7-year period in a nation of 315,000,000 legal and illegal residents. This is in a nation where 93 percent of murdered African-Americans are murdered by other African-Americans."

        However, I believe the picture Randy paints is incomplete. For example, if we are discussing how many people police kill each year, adding the 93% figure is obfuscation. So what? The reference to "2718 criminals" is also a problematic phrase. For example, was the 12-year-old boy killed in Cleveland for displaying a plastic gun a "criminal?" The guy who was strangled in Staten Island was apparently re-selling cigarettes--why is this a "crime" in a capitalist society? Randy also seems reassured that 2700 deaths over 7 years is (by my calculations) about 390 per year, about 1 per day, or about .000001 deaths/year/person. Sounds like a pretty small number. I'd suggest Googling "How many people are killed by police in England?" You can find a Wikipedia entry which lists all of the individual deaths in England since 1920--I counted 23 individuals, and another 17 killed in 3 clashes during the Irish "troubles." A total of about 40 people over almost 100 years is about 1 death per 2.5 years (that's years, not days). Divide that by the population, and you'll get a really, really small number. There was also a reference to an article in The Economist, citing zero police killings in England and Japan last year, 8 in Germany, and more than 400 in the US. Is this the kind of "exceptionalism" that we Americans can be proud of?

        I don't know the various cultures that well, but in response to Joe Listo (via Massoud Malek), it's possible that if one kicked a police officer's car door in London or Tokyo, maybe he/she might not be killed (although my guess is that this would not be a very common event in either place).

        JE comments:  Randy Black's use of the "criminals" label troubled me, too, as the implication is that the 2178 people killed by police tautologically deserved their fate.

        Paul Pitlick's numbers show a darker side of American "exceptionalism."  One might point out that police in the UK don't carry guns, but in Japan they do (underpowered .38 revolvers, which they almost never use).

        The national conversation on Ferguson and Staten Island has now been joined by the Senate's "Torture Report."  Tim Brown (next in queue) has sent a comment.

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        • Does the US Have a Higher "Propensity to Kill"? (John Heelan, -UK 12/11/14 9:56 AM)

          Paul Pitlick's comment comparing police shootings in the US and the UK reminded me of a comment I wrote for WAIS some years ago on the same subject, arguing that the higher rate in the US resulted from a higher "propensity to kill" rate in US culture than in UK culture at that time, and that in a higher kill-rate society, police are understandably more liable to shoot in real or imagined self-protection.

          This is what I wrote on 24 January 2008. (Regrettably, I no longer have my notes from my original research.)

          "Some years ago in a discussion with NRA supporters, after some
          research I proposed that Americans appeared to have what I termed 'a
          greater propensity to kill.' This seems to stem from the second form
          of enculturation--the second conscious way a person learns a culture
          is to watch others around them and to emulate their behaviour.** The
          majority of gun crime deaths at that time, some 9 or 10 years ago,
          were domestic incidents, suggesting that the availability of firearms
          might not have reduced the numbers of violent domestic incidents but
          their lethal nature might have increased the number of deaths resulting
          from those incidents. (I had a personal interest in the discussion as
          my [then teenager] son's closest friend was accidentally killed by his 7 yr-old
          brother, using a .410 shotgun, as the result of a fraternal spat. As
          a result, I banned use of firearms by the family despite our being
          farmers and needing to control vermin.)

          "I will check my notes to see if I still have the supporting data***
          for the 'propensity to kill' hypothesis relating to the US and the UK:
          the UK's propensity was substantially lower at that time. However,
          that may not be as true today, given the recent news that UK gun crime
          has increased by 4% last year.

          "** See Conrad Philip Lottack, A Window on Humanity. The syndrome
          appears to be getting worse, given the prevalence of violent films and
          video games available to teenagers and others. ('The convergence
          of findings across such disparate methods lends considerable strength
          to the main hypothesis that exposure to violent video games can
          increase aggressive behavior,' [Anderson & Dill, 2000], confirmed by
          more recent research.)

          "*** The data was derived from the Lott & Mustard reports, together
          with academic rebuttals of those reports."

          Senior police officers that I know do not want UK police to be armed on a regular basis. However, more police are being trained in the use of supposedly non-lethal Tasers.

          JE comments:  Here is John Heelan's 2008 post:


          What do WAISers have to say about John's "propensity to kill" hypothesis?  Do Americans kill more because they have more guns, or do they have more guns because of their violent nature?  We could pose the same circular question about shoot-'em-up video games:  do the games cause society to become more violent, or are they so popular because they reflect a violence already present?  

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        • Killings by Police; the Toy Gun in Cleveland (Randy Black, USA 12/11/14 4:50 PM)
          In his post of 11 December, Paul Pitlick accused me of obfuscation because of my statement that murder of African-Americans in the United States is overwhelmingly a "black-on-black" crime. Those stats were cited by former NYC mayor Rudolph Giuliani recently on Meet the Press. Giuliani got his statistic from the US Department of Justice, 2010 report. http://www.bjs.gov/content/pub/pdf/htus8008.pdf

          My point that perhaps I should have made more clear is that, contrary to the media and the anti-white activist rants in recent months, blacks are not targeted by white police officers. As Giuliani said, "if the crimes were not being committed, the cops wouldn't be there."

          Additionally, Paul accused me of not painting a complete picture in my post when I clearly referred to the very numbers that Massoud Malek had cited in his December 7 post. I did not originate this conversation; I simply added to it.

          If anything is amiss, Paul ignored the fact that Massoud drew his numbers from the Federal Bureau of Investigation. By the way, I tracked back to Massoud's post and then to the Tampa Bay report and discovered that Massoud mistyped. The quote he repeated should have read, "A national count kept by the FBI reported 1,242 justifiable homicides by police officers from those 105 departments between 2007 and 2012. Not 2,718, as Massoud wrote. Additionally, the numbers were included in an additional article in The Wall Street Journal. I also now note that the Tampa Bay article is a reprint from Slate.com.

          From that same article, I found that "US attorneys prosecuted 162,000 federal cases in 2010, with grand juries returning an indictment on all but 11 of them." Thus, the argument that government attorneys don't always get indictments falls apart statistically.

          Significantly, Massoud seems to have left out an important survey from that same Tampa Bay Times article. Left out was the following fact: A June Gallup survey found, "45 percent of black respondents to a separate Gallup survey rated officers' general honesty and ethics as 'high' or 'very high,' with less than 1 in 5 giving them a grade of 'low' or worse."

          Regarding the numbers that I reprinted from Massoud's post, and that Paul and John Eipper somehow attributed to me, Paul said, "So what? The reference to '2,718 (1,242) criminals' is also a problematic phrase." I believe that both are ignoring the FBI report cited in Massoud's URL attribution that the shootings were "justified," which led to my adjective "criminals." My position is that if the FBI calls the 1,242 police shootings justifiable, then my label "criminals" is justified.

          Finally, Paul also asked, "was the 12-year-old boy killed in Cleveland for displaying a plastic gun a 'criminal?'" If the young man had carried that replica gun in California, Illinois, Michigan and a few other locales, yes. Legally, he was a criminal.

          On two counts, I submit that the young boy acted criminally. First, he carried a hand gun replica, actually a pellet gun, and had removed the federally--and internationally--mandated orange plastic barrel extension. Second, he waved it around, pointed it at others and "fatally" pointed it at police. The photo attached is the actual pellet gun that the boy pointed at everyone and that prompted the call by a bystander to the local 911. Police did not just happen by. A caller said that the boy was scaring others with his antics that by now we've all seen on the video.

          As I said, the pellet gun carried by the 12-year-old Ohio boy was illegal in California where Paul lives.

          California requires such weapons, and pellet guns are weapons, to be brightly colored. Such weapons are also banned in New York City, Washington DC, Chicago, and parts of Michigan. Chicago goes even farther, making it a crime to wield a look-alike or replica gun of any kind. If a toy gun or replica gun is used to commit a crime in the Windy City, then that person is treated as though they had actually used a real firearm. I agree.

          From the Cleveland Plain Dealer: The Cleveland Plain Dealer is reporting that a 12-year-old boy was shot by police Saturday afternoon after officers say he reached for a gun after he was ordered to put up his hands. Police say the gun that was recovered was not a firearm, but that an orange safety tip had been removed.  See more at:


          JE comments:  The photo is below.  On my sixth or seventh birthday Dad gave me a water pistol that was a dead ringer (poor choice of words) for a German Luger.  My father often had strange tastes in gifts.  I proudly brandished it around my friends, and squirted more than a few.  Those were the days before orange tips.  Glad I lived to tell the tale.

          That is an intimidating toy, but it was a child (for cryin' out loud).

          A legal distinction should be made between local (as in Ferguson and Staten Island) and federal indictments.  I would assume Federal Grand Juries are far more likely to indict.

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          • Police Kill 12-Year-Old in Cleveland (Massoud Malek, USA 12/12/14 10:06 AM)
            A video released by Cleveland police shows that a white officer shot Tamir Rice, a 12-year-old black boy, in a park on 22 November, "one-and-a-half to two seconds" after police drove into the park and confronted a bored 12-year old kid who was pacing with a toy gun in his hand and talking on a cellphone. The boy died the following day.


            "Shots fired, male down, black male, maybe 20," said the officer who called in the shooting.

            As Tamir Rice's 14-year old sister rushed to her brother's side upon learning he'd been shot, police officers "tackled" her, handcuffed her and placed her in a squad car with the white officer who shot Tamir. The police told the mother to calm down or they would put her in the back of the police car. When she asked the police to let her daughter go, they wouldn't.


            Not knowing that a camera recorded the entire incident, the two police officers told what happened.

            Tamir Rice was seated at a table with other people. As they pulled up, they saw him grab the gun and put it in his waistband. They got out of the car and told the boy three times to put his hands up but he refused. He was then shot and killed by the rookie officer Timothy Loehmann.

            Here is what happened:

            The boy was pacing with a toy gun in his hand. It take much longer than two seconds to tell someone three times, "put your hands up." Personnel documents from a suburban Ohio police department revealed that Timothy Loehmann was effectively fired from a small-town police force in 2012 because he "could not follow simple directions," displayed "dismal" gun skills and had a "weepy" demeanor.

            The officers on the scene refused Tamir Rice any type of first aid for four crucial minutes of his life. It was only when an FBI agent who happened to be near the scene arrived that he began giving Tamir the life support he needed, making it appear as if the officers may have actually wanted Tamir Rice to die after the shooting.


            On 25 November, St. Louis County Police Department's official Twitter account tweeted the link to an article posted on a precinct's Facebook page responding to the police shooting death of Tamir Rice in Cleveland. The post, which was quickly removed, explained that Rice's death was the result of confusion.


            Would another grand jury find a way to prove to the African-Americans that a confused white police officer who lies under stress and murders a 12-year old boy believing that he is 20 must be set free?

            JE comments:  Weepy or creepy?  It's creepy to realize that when WAIS first started discussing the Ferguson killing (Ric Mauricio, 12 September), Tamir Rice was still very much alive.  We could also call it creepy that events like this tend to happen in threes.

            To get the opposite perspective, Randy Black has sent a second comment on the Tamir Rice case.  I'll get to Randy's post today.

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            • Police Kill Homeless Man in Milwaukee, April 2014 (Mike Bonnie, USA 12/13/14 4:47 AM)
              I have mixed feelings about the April 30th, 2014 shooting of an unarmed man, who happens to be Black, by a Milwaukee police officer who happens to be White. Issues following the killing are still unresolved. Protestors take to the streets daily, have blocked city streets and freeway traffic, occupy city office buildings and the central police station, looking to talk with the chief of police, county prosecutor and the mayor. The police officer responsible for the shooting has been fired for failing to follow "protocol" in patting down the shooting victim; he has not been charged with a crime, so in the eyes of the dead man's family and supporters, justice has not been served. Initial reports of the shooting were vague, but details have emerged as police reports and an autopsy report have surfaced.

              The victim (Dontre Hamilton) was sleeping on a park bench outside a Starbuck's in downtown Milwaukee. A worker at the Starbuck's called police, and two officers were sent to check on the "welfare" of the man. They talked with Hamilton and left. A third officer arrived at the scene (Christopher Manney). He talked with Hamilton and then began to "pat him down" (search his pockets). According to the initial report by Manney, Hamilton swung at him then grabbed his nightstick and began beating him. Manney fearing for his life, and then opened fire.

              Details that follow: Hamilton had been diagnosed as a paranoid schizophrenic at the county psychiatric hospital. He had been unable to obtain prescribed medications for the previous month, and was living on the street. Manney reported the victim attacked him using his own nightstick, although he bore no physical signs of being hit. Hamilton was shot 14 times, once in the back. Although autopsy reports do not tell the entire story, half the bullets entered Hamilton's body in a downward direction and from a distance.

              Following Manney's removal from the police force the local police union called for a "no-confidence" vote against Chief Flynn (a "Broken Windows Theory" advocate). The vote came back as 97% against the chief.

              "Manney was not one of the officers who attended a 40-hour course on crisis intervention approximately 20 percent of the Milwaukee Police Department has attended. He had taken a 3-hour class on the topic. Milwaukee is now offering a 16-hour mental health component for 1,400 officers who have not taken the crisis intervention training. These courses are designed to help officers recognize and assist citizens regardless of incapacity or disability."


              Releasing details of the autopsy report, "Jonathan Safran, the attorney for Dontre Hamilton's family, said he wants the public to have "more accurate information" as a prosecutor weighs whether to file charges against Officer Christopher Manney." (Wisconsin Law Journal, 12/01/14) http://wislawjournal.com/2014/12/01/attorney-inconsistences-in-milwaukee-shooting/

              As I stated at the beginning, I have mixed feelings about the situation. Why has it taken seven months to learn if District Attorney Chisholm will file criminal charges? What was the culpability of the mental health facility? And ultimately, why was Dontre Hamilton homeless?

              JE comments:  I had not heard of the Milwaukee case, but it appears that many American cities have experienced their Ferguson.  Note, however, that none of these incidents so far have come from the Deep South.  (St Louis is "almost" a Southern city, like Cincinnati or Baltimore, but not quite.)

              The fourteen bullets tell a damning story.  I could understand two or three in the heat of a scuffle, but 14?

              The Dontre Hamilton saga highlights America's mixed record of treating the mentally ill.  They used to be institutionalized, which was an imperfect system.  Now they are medicated and released, another imperfect system.  But it's cheaper.  Many mentally ill people become homeless, where they often don't have access to their meds. 

              I don't know what the solution is.

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          • Toy Guns (Carmen Negrin, -France 12/12/14 12:44 PM)
            Don't you think it is about time to stop selling arms? I mean both real ones and toy ones! We would have fewer problems related to gun murders. It is difficult to go to the giant toy stores and find something for boys that does not contain some sort of violence in it. Perhaps this banalization of arms from a very tender age has something to do with all these unnecessary murders, by police and others.

            JE comments: Carmen Negrín has phrased it perfectly: the banalization of arms. So what about a ban on toy guns--at least realistic-looking ones like Tamir Rice's? Think of it as the next step after orange tips.  Politically this would be impossible, in the United States at least, but what about a grass-roots campaign to get large retailers to stop selling them?

            At the same time, Carmen's proposal is of a very European flavor.  A basic tenet of American "exceptionalism":  we are in love with our guns.

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          • More on Tamir Rice Case (Randy Black, USA 12/12/14 2:48 PM)
            When John Eipper stated in his 11 December retort to my post of the same day that the death-by-cop of a Ohio 12-year-old who was waving what appeared to be a pistol at passersby was "just a child," I was just short of stunned. Sure, I thought, John had seen the online video of the matter and had read the 911 calls.

            Referring to my police-supplied photo of the replica weapon, John wrote, "That is an intimidating toy, but it was a child (for cryin' out loud)." As if pointing a replica gun "toy" would have saved a cop's life had he hesitated for even a second and had opted wrongly that the weapon was a toy when it was not.

            Even California, the land of endless numbers of bleeding-heart liberals, Chicago and parts of Michigan have seen the light and disagree with John. Pointing a replica weapon at anyone is a crime and is treated as if it was a real gun. No one has the time to hire a shrink and analyze whether or not the person waving the toy/real gun was mistreated or not properly potty-trained. And yes, I'm guilty of sarcasm.

            Here are some of the facts that John overlooked:

            In 2013, children (juvenile) offenders committed 680 murders in the United States.

            Source: Office of Juvenile Justice and Delinquency Prevention, aka the US Dept. of Justice. http://ojjdp.gov/ojstatbb/offenders/qa03105.asp?qaDate=2011

            The good news is that the number is at its lowest level over the past 32 years. Juveniles are those "children" as John refers to them as those children age 17 and younger.

            Jan. 14, 2013, A California boy, now 12, was convicted of second-degree murder on Monday for shooting dead his neo-Nazi father when he was 10.

            Aug. 7, 2014, Detroit: What seemed like an average summer night turned deadly after a 9-year old boy was killed on the playground (by a 12-year-old). The western Michigan community of Kentwood is now trying to come to grips with the murder.

            Oct. 15, 2014, Police said Tristin Kurilla, 10, of Damascus Township as visiting his grandfather on Saturday at his home on Skylake Road in Tyler Hill. Pennsylvania Investigators said Kurilla went into the room of Helen Novak, 90, and after some kind of dispute, Kurilla punched Novak multiple times in the throat. (She died.)

            Aug. 5, 2014, Michigan: The other (child)--just a few years older at 12--calmly walking from the playground to a nearby house where he asks to use the phone, calls police and tells them he just stabbed the other boy. That was the chilling scene that played out Monday evening in the Grand Rapids suburb of Kentwood, according to police and neighbors. Michael Conner Verkerke died at a hospital after he was stabbed repeatedly in the back on the playground at the Pinebrook Village mobile home park, police said.

            In 2011, 5% of high school students carried a gun on school property, and 7% were threatened or injured by a weapon (e.g., gun, knife, or club) on school property.

            Among selected larger urban school districts Washington, DC, had the highest percentage of students carrying a gun to school (7.5%).

            "He was just a child." (John Eipper).

            Twenty-seven American police officers were murdered by criminals in the line of duty in 2013 (Randy Black)

            Additional sources: http://www.nasponline.org/resources/crisis_safety/Youth_Gun_Violence_Fact_Sheet.pdf


            JE comments: I don't see what is stunning about calling a 12-year-old a child.  I wasn't suggesting that Tamir Rice was a well-behaved child, but does that mean he deserved to die?  Randy Black gives me the impression that his answer would be yes.

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    • Police Accountability: One Family's Perspective (Timothy Brown, USA 12/09/14 5:40 AM)
      I'm a biased commentator when it comes to Massoud Malek's question on police accountability.

      My second daughter was a Marine Reserve Sgt for 14 years and, simultaneously, a police officer.

      As a police officer, while on duty one night she joined in the pursuit of a man caught in the act of selling narcotics who tried to escape by running away.  She caught up with him and succeeded in stopping him long enough for other officers to arrive, subdue and arrest him.  But she was badly injured in the process.

      The suspect appeared before a judge who immediately released him as of no danger to the public. My daughter had to be operated on several times for her injury. But, in the end, she was declared 100% permanently disabled.

      The suspect was shot and killed about a month later by another drug dealer when they had a falling out. My daughter will live in pain for the rest of her life.

      The perpetrator was an Hispanic male illegally in the United States that had been detained and released several times before.

      My daughter is a Hispanic female.

      Three questions:

      1) Why do so many always seem to assume that the police officer is guilty until proven innocent, while simultaneously assuming that the perpetrator is always innocent until proven guilty?

      2) Do race and gender influence their opinions?

      3) My daughter is also a disabled veteran. She volunteered to serve during the Gulf War while we took care of her three children and, while on active duty, was given a pre-deployment experimental anthrax vaccine that had proven to have had a delayed but severe and irreversible negative impact on her health.

      Does her being doubly disabled, both as a Marine and as a police officer. Does that change anyone's opinion? If so, why? And if not, why not?

      JE comments: I'm very sorry, Tim, for the pain your daughter and your family have gone through. I don't understand, however, how the judge could have released a subject who caused injury to a police officer. Even the perpetrator would have been better off in jail.  (At least he would still be alive.)

      Are police officers automatically assumed to be guilty (Tim's point #1)? Events in Ferguson and Staten Island suggest otherwise.

      I invite other WAISers to send their thoughts, especially on Tim's points 2 and 3.

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      • Are Police Assumed Guilty? In the Court of Public Opinion, Yes (Timothy Brown, USA 12/10/14 9:53 AM)

        To clarify my point of 9 December, I was referring to the nearly unanimous immediate response of the media, activists, street demonstrators, the implicit reactions of
        higher authorities, public comments by persons such as Al Sharpton, and a few tens of thousand others on social media--not the eventual decision of one grand jury. And that decision was
        nearly unanimously rejected by those same activists. And what has actually been done by demonstrators in Ferguson, Staten Island, Chicago, Berkeley, Oakland and elsewhere,
        especially when compared with the restraint demonstrated by the police in response to the demonstrators, seems to me to prove my point, not to disprove it.

        As for the judge's action in releasing the man my daughter helped to detain, the police I've know say that's the norm, not the exception. I can't remember how many times
        I've heard police officers say, with frustration in their voices:
        "We throw them in; the judge throws them out. We throw them in, the judge throws them out. That's what we do for a living."

        JE comments:  The recent protests in Berkeley and Oakland have made me think of our colleague John Torok, a JD in Oakland who also studies race issues.  John:  please join the conversation!

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        • Police Accountability, Etc. From Ric Mauricio (John Eipper, USA 12/11/14 12:16 PM)
          Ric Mauricio responds to Tim Brown's post of 10 December:

          If enough people come forth and say something is true, then it must be true. Right? If enough women come forth and accuse Bill Cosby, then the accusations must be true. Right? If enough people say the world is flat, then it must be true. If enough people say that the bad guys are the white cops, then it must be true.

          If enough analysts and economists on Wall Street say something is true, then it must be true. Never mind that the analysts were laughing behind closed doors, saying that some dot com companies were garbage, but placing a buy rating on them.  If the people believed their analysis to be true, then let it be true.

          The problem in today's age of instant information is that it begets so much hubris instantly.  All this makes it challenging to get at the truth. As Jack Nicholson's character said in A Few Good Men, "You can't handle the truth."

          There was the discussion of the 93% of blacks killing blacks, or 84% of whites killing whites. An interesting statistic would be of a comparison of non-black cops killing unarmed blacks vs. armed blacks killing non-black cops. Or what about black cops killing blacks?

          Of course, since non-blacks in this country outnumber blacks by 9 to 1, and I imagine there are more non-black police officers than blacks, the statistical odds of a non-black police officer killing a black is greater. By the way, my use of the use of non-black is an all-inclusive term that would included Euro, Latin, and Asian-Americans.

          Not being in law enforcement, I can only imagine what goes through a police officer's mind in the split seconds before a threat or the imagining of a threat reveals itself. At least, if I make an error in judgment while trading securities, it wouldn't cost me my life.  OK, if I place a short order without a stop loss, and I go eat lunch and the stock goes through the roof, I could conceivably lose my life (savings)--but that would be stupid.

          I would think a solution to this issue to recruit more black police officers. Police officers make good money, and have great pensions.

          I think that some of the billion dollars earmarked for body cameras for police officers could be utilized towards recruiting. In the meantime, we can play the body cam trend, and buy GoPro stock. (Disclaimer: I only own GoPro through an ETF, and this is not a solicitation to buy or sell securities).

          JE comments:  Ric Mauricio has dished up some good stock tips in the past.  Wink, wink.  But of course past yields do not guarantee future performance, etc.  I note that GOPRO is down almost 5% today.  And the P/E, at over 200, frightens me.

          I am in total agreement with Ric:  Body cam money would be better spent on recruiting and training minority officers.  But in today's society, buying tech gizmos is usually preferred to bringing systemic change.

          When historians write the story of 2014, they'll recall Ferguson, Staten Island and the downfall of Bill Cosby, who once was not only the nation's most beloved African-American celebrity, but also an outspoken critic of African-Americans who don't take responsibility for their lives.  There must be some irony here.

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    • Police Brutality in the US (Massoud Malek, USA 12/10/14 6:30 AM)
      This post is about police brutality, and why Blacks don't enjoy the same constitutional protection as whites.

      A proposed amendment becomes part of the US Constitution as soon as it is ratified by three-fourths of the states.

      The Thirteenth Amendment to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. It became truly part of the Constitution on February 7, 2013, after the last state, Mississippi, ratified it. Today Black slavery has another dirty face.

      The Fifteenth Amendment to the United States Constitution prohibits the federal and state governments from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude." It became truly part of the Constitution on April 8, 1997, after the last state, Tennessee, ratified it. Today, the Republican Party practices policies of voter suppression. That's the assault and battery of African-American political rights.

      On 7 November, Joe Listo wrote:

      "In Brazil, you kick a police squad car or fail to stop when told to and you are dead, no matter your color. But in the US it seems police officers have to put their lives at risk when dealing with African-Americans to avoid the mayhem we saw in Ferguson."

      I remember how in 2013, the Brazilian police indiscriminately brutalized protesters who were demanding that city authorities revoke plans to hike the local bus fares.

      Maybe police brutality in Brazil is color blind, but in the US, white police kill young Black boys; some of these are younger than fourteen.

      According to a ProPublica analysis of federally collected data on fatal police shootings, the 1,217 deadly police shootings from 2010 to 2012 show that Blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.

      The data is terribly incomplete. Vast numbers of the country's 17,000 police departments don't file fatal police shooting reports at all. For example, Florida departments haven't filed reports since 1997, and New York City last reported in 2007.

      The Black youths killed can be disturbingly young. There were 41 teens 14 years or younger reported killed by police from 1980 to 2012. 27 of them were black; 8 were white; 4 were Hispanic; and 1 was Asian.


      Now I am responding to Randy Black's post of 8 December.

      It is impossible for a prosecutor to prove that the only purpose for a white police officer who shot an unarmed Black boy was because the officer wanted to deprive the boy of his civil rights.

      The Fourth Amendment of the US Constitution was based on a Roman expression that states: "each man's home is his castle."

      A police officer has no right to enter someone's house without a warrant in order to kill an 18 year-old boy in his grandmother's bathroom. This is a violation of the Fourth Amendment. Killing an unarmed boy in his bathroom is a purely criminal act. Therefore it relates to the subject of the police brutality against Blacks.

      [RB]: "Next, Massoud mentions a 1989 case and finally refers to the number of cases where police officers shot and killed 2,718 criminals over a 7-year period in a nation of 315,000,000 legal and illegal residents. This is in a nation where 93 percent of murdered African-Americans are murdered by other African-Americans."

      I guess Randy's 93 percent is from Rudy Giuliani, who said on Meet the Press: "I find it very disappointing that you're not discussing the fact that 93 percent of blacks in America are killed by other blacks." Then Giuliani told an African-American panelist: "The white police officers wouldn't be there if you weren't killing each other."


      Randy should have also mentioned that 83 percent of white victims are killed by whites. It is an established fact that people victimize their own rather than drive across town to victimize somebody else. Only 5 percent of African-Americans are involved in violent crimes, mostly in gang-infested slums, caused by poverty and lack of opportunities that are enjoyed by whites.

      While African-Americans who murder other African-Americans end up in prisons or die by lethal injection, police officers who kill unarmed Blacks are protected by the 1989 Supreme Court case and anonymous jurors. They are allowed to walk free in a nation of 315,000,000 legal and illegal residents.

      About Ferguson:

      As protests continue over the police shooting of Michael Brown in Ferguson, Missouri, the United States is facing pressure internationally over its failure to put a halt to police brutality. In a new report, the United Nations Committee Against Torture expresses deep concern over the "frequent and recurrent police shootings or fatal pursuits of unarmed black individuals." The panel's report was published following a series of hearings in Geneva last month. Michael Brown's parents testified before the panel. Michael Brown Sr. spoke to the press after his testimony.


      JE comments: I hope non-US WAISers will weigh in: what is the international view of Ferguson and Staten Island? Add to that the latest bombshell, the US Senate's "Torture Report" on CIA interrogation techniques. There are two ways of looking at it: either the US is unparalleled in its hypocrisy, which tends to be the official view in China and Russia, or else this nation is having an honest discussion about its shortcomings. Many other nations (China and Russia come to mind) wouldn't dare to air their dirty laundry so publicly.

      WAISer Tim Brown has a diametrically opposite view on the public perception of police.  Stay tuned.

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  • What do Grand Juries Do? Everett Dirksen (David Duggan, USA 12/09/14 4:15 AM)
    The purpose of the grand jury is not, as Massoud Malek stated on 5 December: "to help the prosecutor decide whether to bring criminal charges against a suspect in a crime." The purpose of the grand jury is to determine whether there is "probable cause" to believe 1) that a crime has been committed, and 2) that the accused committed it. The US Constitution guarantees (Amendment V, cl. 1) the right to "presentment or indictment of a Grand Jury." At one point, this may have been a protection against prosecutorial overreach, but the system has subsequently been corrupted to the point that as oft-repeated, "you can indict a ham sandwich."

    The reasons for this are many, but can likely be summed up: the prosecutor controls both the witnesses who appear before the grand jury, the questions that are asked, and the legal instructions given. State prosecutors can do an end-run around the requirement of an indictment by proceeding by "information" which is simply a statement of the charges signed not under oath by the prosecutor as an officer of the court. Curiously, the indictment clause of the Fifth Amendment has not been "incorporated" (that is made applicable to the states) by the Fourteenth Amendment's due process clause. Still, most states use the grand jury system if only because it takes prosecutors off the hook for advancing or not unpopular prosecutions. It would be nice to reduce the "probable cause" requirement to probabilistic terms (i.e. more than a 50% chance that each requirement is met--which means if Bayesian hypotheses are employed, that the "likelihood" that the accused committed the crime can be as low as 25.1%), but that has never, so far as I am aware, been sanctioned.

    You ask what the difference between a "presentment" and an "indictment" is, and the presentment is a statement of charges made by the grand jury, independent of the prosecutor. An indictment is actually drafted by the prosecutor.

    What is curious and quite unusual about both the Staten Island and Ferguson, MO cases is that the prosecutors in each instance essentially viewed the grand jury as the trier of fact in cases in which the issue of motive or intent was subject to doubt. In both cases, the target testified, which is not a right guaranteed by the Constitution (state laws vary). Of course, the target is going to testify that he bore no animus toward the victim and did not "intend" to do him harm. Regardless, in Ferguson, it took only four of the 12-member grand jury to vote against indictment; in Staten Island it took 12 of 23 (so far as I have been able to tell, the split in each case has not been reported).

    Separately, John Eipper asked me about Everett Dirksen, Illinois' senior senator and minority leader of the Senate during the Johnson presidency. Probably the second most successful Illinois Republican politician (it's a long slide after Lincoln), Dirksen was known for his silver-tongued oratory and somewhat plainspoken public persona, kind of a cross between William Jennings Bryan and Harry S Truman. From the Central Illinois town of Pekin, outside of Peoria (the high school team in the pre-politically correct days were the "Chinks," because the townspeople thought that if you drilled a hole through the center of the earth you'd come out in China: they were off by only 5 or 6 thousand miles), Dirksen helped Johnson pass both the Civil Rights Acts of 1964-65, and Medicare, assuring bi-partisan support for those legislative initiatives. (Are you listening, Barack Obama?) A champion grower of marigolds, Dirksen labored in vain to have the marigold named the national flower. More significantly, the federal court building in downtown Chicago is named for him; it is part of a three-glass-and-steel building and orange sculpture complex called Federal Plaza, designed by Mies van der Rohe with Alexander Calder lending the sculptural assistance.

    In what was the start of a trend among Illinois governors, the "boy-wonder" Gov. William Stratton (1953-61) was indicted after leaving office for tax evasion, not having reported campaign contributions as income when he used them for allegedly personal expenditures. Dirksen testified on Stratton's behalf, charming the jury, and Stratton relied on an IRS opinion stating that unless the contributor specified how the funds were to be spent, the donee was free to use them however he pleased. He was acquitted (the law has subsequently been changed and a politician uses campaign funds for his lifestyle at his peril, unless he reports it as income). This trial took place before the Dirksen building was erected; Stratton's lawyer, John Powers Crowley was later a federal judge in that building (when defense lawyers could become federal judges). Six years ago this week, then Gov. Rod Blagojevich was arrested for violating, among other things the proscription on the use of campaign funds for his personal use. While the government dropped most of the charges arising from those events (i.e., Oxxford suits), Blago remains incarcerated pending the appeal of his conviction for trying to barter Obama's senate seat for more contributions or a better job.

    On arrest he was taken through a secret entrance to the Dirksen Building so as not to attract attention.

    JE comments: No one better qualified than my favorite Illinois lawyer (David Duggan--I'm fond of Lincoln, too) to comment on Grand Juries and Senator Dirksen.  May I make a layperson's generalization on Grand Juries?  Given the notion of "probable cause," shouldn't a GJ (unlike a trial jury) err on the side of presentment?  In other words, if in doubt, send it to trial?

    (Returning to the above, it just occurred to me that Barack Obama is also an Illinois lawyer.  I like him more than most WAISers do, but I'll still rank Duggan and Lincoln as my favorites.)

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