Close Your Eyes and Pretend Really Hard

Scott Greenfield makes a point, with some regularity, that we shouldn't be in the business of making people stupider.

H.L. Mencken said that "Nobody ever went broke underestimating the intelligence of the American public.

It's not actually P.T. Barnum who said, "There's a sucker born every minute."

And then there's Paul Cassell.  Former federal judge, law professor, scold, and holder of one of the soapboxes at the Volokh Conspiracy.  For several days now, he's been offering a string of misleading claims about the grand jury process and transparency and how when (he always said if, but he meant when) the grand jury did not indict Darren Wilson for the killing of Michael Brown it would be because they did their job properly and concluded that he wasn't actually guilty.  Greenfield's taken him to task for his lies misrepresentation. (Here, for instance.)  So have I (here).  So, I'm sure, have others, but I've been busy and fallen down some on my reading.

Now, of course, we know that the grand jury did what we knew it would do.  No, they said, we're not going to indict Wilson.  And Cassell is back to assure us that they did their job properly and that there's absolutely nothing out of the ordinary that went on.  Specifically, he says this:

A day before the grand jury’s decision was announced, Michael Brown’s family attorney raised the objection that the grand jury process was unfair because it was deviation from the normal process. “When you think about it, if this prosecutor is saying we’re just going to be fair, we’re not going to recommend any charges, that’s different from anything he’s done in his past 28 years with grand juries,” attorney Benjamin Crump argued. It turns out that at least part of this claim is untrue: McCulloch presented to the grand jury the full range of charges, from first degree murder to involuntary manslaughter. The only difference from normal process was, apparently, that the prosecutor did not make any particular recommendation — leaving the issue up to the grand jurors. But it is hard to understand how this had any ultimate bearing on the outcome. Of course, if McCulloch’s recommendation was against filing charges, then he would never have gone to the grand jury in a normal case. And if his recommendation was filing charges, then in the normal course a grand jury (or judge) would have had to review the evidence and would have been thrown out the indictment at the point.

Cassell makes the following points.

1. Benjamin Crump says that the prosecutor's behavior in this case was unusual because he didn't recommend any charges.
2. That's not true. 
3. The only thing unusual is that the prosecutor didn't recommend any charges.

Now, I'm not a former federal judge or a law professor.  But I do know the old theory that if you says something loud enough and long enough people will believe it.  Like the White Queen who managed six impossible things before breakfast.

And then, of course, there's the kicker.  That in the normal case where the prosecutor recommends an indictment to the grand jury that indictment will be dismissed.

Greenfield, Mencken, not-Barnum.  Ah, but Paul Cassell. 

On Just Whose Ox Gets Gored

Give Paul Cassell credit.  He said one thing that's right.

The evidence should determine the outcome in this case — not threats of violence.

Beyond that, it's all hooey.

The issue is Darren Wilson in Ferguson and whether he'll be indicted for murder.  (Spoiler alert: Nope.)  And it's Cassell's latest screed on the subject.

Here's how it works in the hypothetical Darren Wilson grand jury. If the prosecutor wanted to charge Wilson with murder, he would send in one, maybe two witnesses.  The grand jurors would hear three pieces of evidence:

1. Michael Brown was unarmed.
2. Darren Wilson shot Michael Brown.
3. Michael Brown died from the gunshots.

The prosecutor would explain to the grand jurors that the elements of murder were satisfied.  The grand jury would then charge Darren Wilson with murder.  It would be done in an hour.  Any defense?  That's what trials are for.

Here's how it works in the hypothetical actual grand jury.  The prosecutor spends weeks bringing in witnesses who explain that 

Sure Michael Brown was unarmed but you have to understand the circumstances from Darren Wilson's point of view and here are the things that would constitute his defense and remember that he was a cop just trying to do the best he possibly could and Michael Brown was a street punk who probably deserved it and who's going to keep you safe at night if the cops are afraid to anything to protect themselves and you lest they be charged with murder and really the son of a bitch deserved it and anyhow really cops don't get convicted so why bother.

Now, says the prosecutor, here are the elements of murder which I suppose if you folks went out on a limb you might find but remember all that evidence of innocence and the defense that Wilson would present and you know that he won't be convicted anyhow and why tarnish a good man's reputation but if you feel that he's guilty beyond a reasonable doubt I suppose maybe, but really, we don't think we can prove it.

Here's Cassell explaining the glorious things that would will happen if when the grand jury returns without an indictment.

If no charges are filed, the country would have an opportunity for an important civics lesson on the presumption of innocence, the need to avoid a rush to judgment, and possibly (depending on the evidence) the fact that a police officer did not use excessive force but was simply defending himself in the course of trying apprehend a violent robber — i.e., Brown.

None of that, none of it, is what grand juries do in the ordinary case.  Grand juries hear a summary of evidence of guilt and return indictments.  They determine not whether there's a defense, not whether the presumption of innocence has been overcome.  They determine whether summary of evidence of guilt is sufficient to say, gee, this guy oughta be tried.

The rest, that's all for trials.  It's from the trial, where the evidence of guilt is presented to a jury of 12 in a courtroom operating under the rules of evidence, where the evidence is challenged by cross-examination, where the defense gets to put on its witnesses (who the prosecutor can cross-examine), it's from there that the public can learn those important civics lessons.

Cassell knows that, of course.  And he's perfectly happy with the grand jury hearing a summary of evidence and then indicting in the ordinary case where it's Michael Brown being charged with involuntary manslaughter for causing his own death by stealing the bullets that were being flung at him by an officer's gun.  But Darren Wilson?

Law of Rule.