July 14, 2020--Seven to Two

The first wave of phone calls, texts, and emails I received right after the Supreme Court late last week ruled that even the president is not above the law, that he must respond to subpoenas, and can be held accountable for any felonious activities in which he may have been involved, all the people I heard from were ecstatic, many claiming this would finally assure Trump's downfall.

A few hours later, after everyone had their fill of watching events unfold on CNN and MSNBC (Fox News devoted little programming time to cover this historic ruling) the tone of those who stayed in touch with me changed. 

Where earlier there had been euphoria I sensed the beginning of frustration.

"What's going on with you?" I asked a friend who just hours before had been the most enthusiastic, "I thought you were on happy pills. Now you sound as if you're headed for deep despair?"

In a flat voice she said, "Since we spoke I've been listening to cable news and everyone, their legal experts especially, say none of Trump's tax documents will be available to the public before Election Day. He and his henchmen will be able to run out the clock. The political effect will be nonexistent. I'm turning off the TV or will look for an episode of Friends to lose myself in."

"Before you pack it in," I said, "Be sure you're keeping your eye on the prize."

"What's that?" she said.

"The big picture," I said, "The historic nature of the Court's ruling. People will read about this 100 years from now. Just as we think about and read about Supreme Court decisions during the Watergate era. Like the Supreme Court ruling that Nixon was not above the law and thus needed to turn over to prosecutors the tapes he made while in the Oval Office."

I continued, now feeling euphoric myself, "Remember how through the seemingly endless years of the Trump administration we said that the most important checks-and-balances guard rail would turn out to be our justice system? That ultimately all the big questions would be resolved by the federal courts? Particularly as with Nixon and Clinton, who while still president was required by the Supreme Court to testify under oath, we speculated that soon equivalent matters would find their way to the highest court for resolution. Well, that's where we are now--the most important issues are being dealt with by the Supremes and, based on their rulings thus far, there are reasons to believe that Trump will eventually be bought before the bar of justice. Since, though he is president, he is still, according to the Constitution, just a citizen."

"I see your point," my friend said, "It is all about the precedents. The reassertion that even with an authoritarian like Trump the law will eventually find him and hold him accountable."

"That's the hope," I said. "Though I'll acknowledge there's still a ways to go. But we're finally heading in a good direction. And, by the way, the fact that the vote was 7 to 2, with Trump's two judges voting with the majority, suggests there may be a lot to feel good about."

May 4, 2015--Joy Ride

At least in Brooklyn, when I was a kid, when the cops, to teach us "respect for the law," took one of us for a joy ride, they had the guts to throw us in the back seat of their patrol car and beat us up with a rubber hose.

How different now where the cops lack the guts to do this with their own hands but rather, shackle someone, toss him in the back of a paddy wagon, and then take him for a "nickel ride," as it is referred to in Baltimore. And while on this ride they make intentional abrupt stops and starts and violent turns so the prisoner, unsecured, is thrown about in the vehicle and is sure to be slammed unprotected against the steel walls of the vans.

Most times, "to teach them a lesson," the victims wind up "just" battered, on occasion paralyzed and in a wheelchair for life, as in B'more, or as in the recent tragic case of Freddy Gray have their spinal column severed and in the process are killed.

Lesson delivered. Respect for the law.

And in Maryland, in Charm City, the cops have something else going on--the so-called "police officers' bill of rights. Passed by the state legislature there and, as reported in the New York Times, in at least a dozen other states, it gives special legal protection to cops. Maryland's is the first, passed in the early 1970s, and goes further than any other state in offering the police the most layers of protection from accountability or prosecution.

For example, the Maryland bill of rights gives officers 10 days before they are required to talk to investigators. Ten days more than any other Old Line State citizen. Common sense suggests only one reason for this week-and-a-half delay--it provides time for a potentially accused cop to consult with lawyers and colleagues who may have been involved in an abusive or felonious situation to align stories. In they words, to cover up what actually happened.

Other aspects of the Maryland law limits the amount of time officers may be questions and dramatically shortens the time an alleged victim has to press charges--90 days from the time of the incident even though the potential complainant may be in the hospital recovering from injuries.

These laws come to be put on the books as the result of police unions lobbying for them and contributing tens of thousands of dollars to local campaigns to assure the election of police-friendly officials.

In Freddy Gray's case it was only because of the pressure of protestors and the worldwide coverage his murder attracted that caused prosecutors and the police themselves to move things along so quickly.

There is understandable celebrating in Baltimore but savvy residence know how difficult it is to convict police officers of any crime, especially one this heinous. There is so much ambiguity about what happened in incidents of this kind and the police unions have limitless resources to deploy in the defense of their members that the likelihood is that all six who are charged will not be convicted. It almost never happens.

December 8, 2014--A Conversation About Race

Every time there is an outrageous example of how the justice system in America works differently for white people and people of color, political leaders, the press and clergy say that we have to have a serious, dispassionate national conversation about race so that we can at long last overcome our still fraught racial history.

This call was raised after the OJ Simpson trial when it was obvious that whites and blacks experience the justice system almost as polar opposites--the vast majority of caucasians saw him to be guilty of homicide while blacks in overwhelming numbers cheered the jury verdict.

For a week or two after the verdict a version of that national conversation occurred; but here we are again, nearly 20 years later, with two grand juries--one in Ferguson MO, another on Staten Island--failing to indicate two white police officers who killed unarmed black men. Again there are street demonstrations, 24/7 media coverage, and renewed calls for that discourse about race.

But before we can even get started talking across the racial divide, people are criticizing New York City mayor Bill de Blasio (who has a biracial son and daughter) and Barack Obama (who is obviously African American) either, as in the case of the former, for "throwing the police under the bus" (as ludicrously claimed by the president of the NYC patrolman's union) or, as in Obama's case, for not speaking out passionately or personally enough.

The Washington Post over the weekend wrote explicitly about this--"N.Y. Mayor Bill de Blasio Spoke Bluntly On Race, Policing in Ways Harder for Obama."

Yes, the mayor spoke bluntly--actually he was more compassionate than blunt--praising the vast majority of police officers who protect citizens black and white while calling for the need to retrain them in the appropriate use of force and then "spoke from the heart" as a father of a dark-skinned son who sports a huge Afro while Obama spoke more professorially, less as a black man and father of two daughters.

Obama may have tempered his remarks out of concern that they might interfere with his Department of Justice's investigations of both cases, exploring whether or not the victims' civil rights were violated though they will be difficult to press since the DJ would have to prove intent. He may have wanted to avoid the legal storm that arose after Trayvon Martin was killed when he, with emotion and truth, said Trayvon "could have been me."

Yes, any President needs to tread carefully when talking about on-going criminal investigations, but surely there must be ways, there must be appropriate words for our first African-Ameircan president to speak publicly about race in less than his usual dispassionate way. For him, if you will, to testify about what it is like, what it feels like to be a black man in America and the father of teenage children who must worry when his children are out and about, even with Secret Service protection. And how he must have residual fears about his own safety when in public. Fears exacerbated by the fact of his skin color.

I understand that during his first term, for political reasons alone, he did not want to come off sounding like a "black president." He was and is the president of all the people, even those who disagree with and even despise him. Further, considering the underlying racism so pervasive in America, he did not want to give bigoted whites the excuse to have their views confirmed that he is the proverbial boogie man (epithet intended)--a militant Angry Black Man.

But now, with the last midterm elections over (and lost) what continues to hold him back from truly speaking his mind and leading the long-overdo conversation? He has nothing significant to lose. Now more than ever we need his perspective and passion.

November 25, 2014--The (Sort of) Good News From Ferguson, Mo

Yes, there is some good news from Ferguson. Keep reading.

Back in 1985, the then chief judge of he New York court of appeals, Sol Wachtler, famously said that an even half-competent prosecutor, because of the nature of how the grand juries function, could have them "indict a ham sandwich."

This is because it is easy to demonstrate "probable cause," the threshold grand juries are instructed to follow when considering an indictment. "Probable cause," not the much more demanding "beyond a reasonable doubt" that a conviction requires.

The justice system is structured so that indictments are relatively easy to obtain but convictions aren't.

But the grand jury in Ferguson, Mo, because of the behavior and lack of clear instructions from the prosecutor failed to indict Darren Wilson, the white police officer who shot and killed Michael Brown,  an unarmed African-American teenager back in August.

From his statement late yesterday and reports from legal experts who over-night examined the grand jury evidence that was released, it is clear the prosecutor, in effect, conducted a version of a full trial; but a trial in which the interests of the deceased were not adequately represented nor was there compelling evidence that the side representing the state (the prosecutor) aggressively made the case for indictment.

Quite the opposite.

In his formal statement announcing that the grand jury failed to indict Wilson, St. Louis County prosecutor Robert McCulloch, said that the main reason there were no indictments was because there was so much "conflicting evidence."

Well, that's true in every judicial situation. There are virtually no open-and-shut cases. A trial by its nature deals with conflicting evidence. The prosecution cites evidence and the defense attempts to refute it with "conflicting evidence."

At the grand jury "trial" of police officer Wilson, the cards were stacked against the potential state's case in that, by presenting so much conflicting evidence to the grand jury, the prosecutor, rather than representing the interests of the state (the traditional role for prosecutors from common law times until today) in effect acted as it were the defense attorney for the potentially accused.

(It may not be irrelevant to note that McCulloch's father was a police officers who was killed, when McCulloch was 14, in an incident that involved an African American kidnapper.)

Further, the prosecutor gave the grand jury a checklist of five possible levels of indictment, from murder-one to involuntary manslaughter. Unlike every other grand jury with which I am familiar (and I have served on two, including a so-called special grand jury that dealt with and handed down more that 25 indictments for the New York City version of the Crips gang), this time apparently McCulloch just gave them the list and did not make recommendations about what he felt would serve the interest of justice.

No wonder it took the grand jury more than two days to do nothing. They sat through a quasi trial with no opening or closing statements that could help guide their thinking and no guidance from the prosecution about how to think about the potential charges.

So it is no surprise that this sad time the ham sandwich walked.

Then, where's the good news?

Think back not to many years about similar situations in too much of America. Situations in which white men could maim, torture, and kill black people (usually young black men) with virtual impunity.

How many clear situations of murder with intent went uninvestigated or half-heartedly looked into? There are enough outrageous examples from my lifetime alone to fill this page.

And not just cases from the South. Even in New York City, the self-proclaimed center of liberal thought where we take pride in our open pursuit of justice, the so-called Central Park rapists were recently released from years in jail because it finally became clear that their trials were rigged by the prosecutors who did not do their due diligence when faced with the rape of a white women jogger by an alleged marauding band of young men of color. And how many white police officers have shot and killed young African-American boys and men in New York and have been under-prosecuted? One such killing occurred as recently as last week in a public housing project in Brooklyn. We'll see how justice takes its course over the next number of months.

But consider the progress. Even in Ferguson.

As flawed as it was, at least this time there were months of investigation and pressure to pursue justice. The system may have failed, but what happened in Missouri (and matters are not concluded--there may very well be a U.S. Justice Department civil rights case that could lead to indictments and a criminal trial), this case was not handled as equivalent ones have been through our tortured racial history.

So as we watch the media show endless footage of the telegenically burning police car (thereby abetting the narrative that "they" are dangerous and must be controlled and if necessary repressed by civil authorities), think back about where we have been and how far we have come. Including who is our president and attorney general.