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.