Law Enforcement, Race and the Gun Culture – V

This post is the sixth in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here and Part IV is here.

In my post entitled "Law Enforcement, Race and the Gun Culture – Discussion" I posted comments from two of my readers and my responses, but in looking back I see that I failed to quote one comment that I should not have overlooked, because it was very complimentary.

That comment came from Albert Nekimken of Vienna, Virginia and it read:

These are very hard-hitting, well-written blog posts. The malfunctioning of the grand jury system disturbs me the most.

Nekimken made this comment after my second post. He could not know that there are even worse things in our criminal justice system, than the failure of the “grand jury system.”

In my last post I discussed how prosecutors, instead of seeking justice as they are supposed to do, seek convictions regardless of guilt, and treat each conviction as though it were “another notch in their gunbelt." I pointed out that many innocent people are convicted, even though the prosecuting attorney has evidence in his possession highly probative of innocence, if not absolute proof thereof.

The stories of innocent people facing the nightmare of conviction and incarceration should chill the blood. The average reader will say ‘that couldn’t happen to me’. But it could! The numbers are astounding. But since numbers never seem to reach the conscience adequately, (they are cold statistics) I urge the reader to acquire and view the CNN documentary: “An Unreal Dream – The Michael Morton Story”. For information on that documentary, see here. This was a dramatic story, but it is not so different from so many others. I quote from CBS News: 

Morton's nightmare began in 1986, when his wife Christine was bludgeoned to death in their home in Austin, Texas. Despite no direct evidence linking him to the crime, he quickly became the prime suspect. At his trial, Williamson County District attorney Ken Anderson painted a picture of him as a violent, sexually depraved murderer who showed no remorse for his crime…

They literally pulled my son out of my arms, 'cause he was screaming for me. And, you know, the little hand is out. And ... he's being pulled away. And that was one of the worst parts…

For a short video on the case click here.

Unfortunately, the Supreme Court in the usual 5-4 decisions, actually reversed a decision granting another innocent man, who had served 14 years in prison an award of $14 million, $1 million for each year served. The Supreme Court held that he is entitled to - NOTHING.

But the injustices of our criminal justice system don’t stop there. In theory, one is innocent until proven guilty. But in practice that is hardly true. Pleading not guilty can be dangerous. There is an enormous penalty for insisting on a fair trial.

It is known as plea-bargaining and it is the method that prosecuting attorneys use to extort guilty pleas.

In a research paper on the subject entitled: “Plea and Charge Bargaining” the author finds:

In plea bargaining, a defendant is faced with a charge at arraignment. Typically this is the maximum charge or punishment that the defendant will be held to if he or she goes to trial. The prosecutors will present the defendant with an opportunity to plead guilty to a lesser charge or to the original charge with less than the maximum sentence.

What this means in practice is that defendants who plead guilty to the lesser charge, will get a lighter sentence, but if they chose to go to trial and are convicted, they will face the full penalty of “the maximum charge or punishment”.

This is a difficult choice to make. Going to trial is always a throw of the dice. It is impossible to predict with any kind of certainty, or even probability, what the outcome of a trial will be. It is “a throw of the dice”.

This is particularly true for the indigent or poor defendant who does not have access to highly competent counsel. It is even truer for those who cannot raise bail, and are incarcerated pending trial or other disposition. They might end up spending a year in jail pending trial, while if the charged offense is not that serious, a guilty plea might get them free in less time. The pressure to get out of jail, and/or to avoid the risk of long jail time is too great to make going to trial a plausible alternative.

Not surprisingly, the research paper cited above estimates that “about 90 to 95 percent of both federal and state court cases are resolved through this process” and that is confirmed by the website of a DA’s office in Texas where it is stated: "At least 90-plus percent of all criminal cases are disposed of by plea bargain agreements."

Not surprisingly the paper finds: “The majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas.”

The paper makes no attempt to explain this discrepancy, but I would suggest while in some cases racial prejudice may be a factor. More likely it is a question of economic status. It is logical to assume that those who have no difficulty raising bail and of hiring the best defense counsel are in a better bargaining position than the poor defendant, who the DA knows cannot put up a good defense at trial, and therefore there is less need to offer inducements for a guilty plea. As is well documented, Blacks are generally in a lower economic status than whites.

But where the injustice becomes even clearer is where accomplices get disparate sentences where one of them “cops a deal”, sometimes “called accomplice testimony. It's when a person involved in a crime agrees to testify against the other participants in exchange for a reduced plea.” See here. 

In effect this means that if one of the people charged agrees to give testimony in accordance with the prosecutors wishes, he gets a lighter sentence, which is quite an inducement to give such testimony, whether true or not. The DA gets his conviction, and one who may be guilty gets off with a light sentence, or even with probation.

It should be obvious that such testimony is highly dubious, and accordingly “New York law says that testimony of an accomplice, standing alone, is insufficient proof against the defendant.  There must be some form of corroboration that connects the defendant to the crime on top of the co-defendant testimony.” See here. But this is not true in other jurisdictions. Under “federal law… accomplice testimony is enough," (Ibid) and it varies from state to state.

According to the Cornell Law Review, Vol72:800 @p.802 (The link for this doesn’t work – For those who might want to go to the source, Google Cornell Law Review, Vol. 72:800 and then chose: "Accomplice Testimony Under Contingent Plea Agreements")

Accomplice plea agreements tend to produce unreliable testimony because they create an incentive for the accomplice to shift blame to the defendant or other co-conspirators. Further, an accomplice may wish to please the prosecutor to ensure lenient prosecution in his own case. Nevertheless, courts held that the testimony of accomplices who receive lenient treatment is not per se unreliable. Federal courts have allowed convictions based on uncorroborated testimony of accomplices to stand where the testimony is not “incredible or unsubstantiated on its face.” Convictions have been sustained even when the accomplice is an admitted perjurer.

How much this stacks the deck against the accused can bee seen from the fact that if counsel for the defense where to offer an inducement to a witness to testify on the defendants behalf, not nearly as beneficial as a lower sentence, or even probation, the attorney could be disbarred and prosecuted for subornation of perjury.

The deck is stacked against the accused in every way, and if the accused is indigent or poor, the likelihood of his being able to put up a proper defense, (with all the required investigations and the expenses involved therein) are dim indeed.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

The Nation Escaped a Bullet

It is with a sigh of relief that I celebrate the reelection of Barack Hussein Obama.

However, I must warn my readers not to make the same mistake they made four years ago, when they thought the election of Obama would immediately and irrevocably bring in a new era. That since Obama had spoken of a nation that does not consist of blue states or red states, but only the United States, that he would bring in an era of bi-partisanship.

That since he was the first black American to achieve the Presidency, he represented the beginning of a post-racial era.

That since he had indicated that in the way that Ronald Reagan had been a transformational President, he too hoped to be a transformational President, and bring in a new era of governmental responsibility.

It was not understood that these were aspirational ideas, that might one day be achieved, not promises that would be achieved on day one, or after one year or after one term or maybe not even after a decade.

But I tried to disabuse my readers after the election in 2008 when I wrote my essay with the tongue in cheek heading "Obama Walks on Water." I don’t think many paid attention.

Now as we come into the President’s second term I hope people have more realistic expectations. We are a nation that takes great pride in its checks and balances. We don’t want our President to be a dictator. We want our President to have to look to Congress for legislation, to pass our budget, to confirm appointments, etc. and then when the President is hamstrung by the system and by an opposing party that brooks no compromise, we wring our hands and feel our President has let us down. I have said before and I say again, the President has no magic wand.

It is also a fact that no President should be held responsible for what happens in the first nine month of his Administration. During those nine months the President is working with his predecessor’s budget, with his predecessors appointees, and with the effects of his predecessor’s policies. Thus the campaign attacks, as mirrored by the media, were totally misplaced and unfair. If we look at the graph of job creation which I published in my blog post "We are Americans!" and we delete the job losses of the first nine month of the Obama Administration, the wild number of job losses vs. job creation look quite different, as would figures on how large the deficit was to be attributed to the Obama Administration and how much to the outgoing Bush Administration.

                                   . 

Some may say why dig up old history? But it is not old history in the sense that it illustrates how the media fails to enlighten, and in fact acts as a medium for obfuscation and deception, and those who have been reading my blog post know how upset and angry I am with an institution that has a primary responsibility to elucidate and inform.

Please reread my blog post "The Media in General and the New York Times in Particular" where I refer the reader back to other blog posts criticizing the media and elaborate on recent sins of omission and commission including sources I most respect – PBS Newshour and The New York Times.

But even since then I have watched with dismay as the Romney campaign flagrantly distorted what the President said on job creation. The Romney campaign attacked the President for ostensibly saying: “If you’ve got a business -- you didn’t build that.” (See here for examples of how the Romney campaign extensively distorted this.) The media in their typical attempt to find equivalency in everything equated this so-called faux pas with Romney reference to the 47%. But in fact there was no faux pas on Obama’s part. What Obama had said was: “If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business -- you didn’t build that.”  It was more than obvious that Obama was referring to roads and bridges when he said you didn’t build that. Where was the faux pas? Only in the fact that Obama did not foresee that the statement could be taken out of context. Is that the same as Romney talking with contempt about 47% of the American people? Nothing taken out of context.

For that matter the media also equated the 47% comment by Romney with Obama’s comment about “Guns and Religion” which he made four years ago. For example, Mary Bruce of ABC News asked “How are Romney’s comments any different from what the president said?," ignoring both the time lapse and the fact that Romney was talking about most Americans and his own constituency, while Obama was talking about a much smaller segment and people who hate his guts. But the media is always looking for equivalencies no matter how false.

How did we get here? To be sure, as the media likes to point out in its defense, poor biased reporting was common at the early years of our Republic. But we had a much more responsible press not so long ago, though few would remember it. An Op-Ed article in the New York Times deals with this in part. (Yes, the Times gives us some excellent editorials and excellent columns –its news pages are often lacking) The article correctly points out that, “…In 1985, the conservative organization Fairness in Media, backed by Senator Jesse Helms, tried to arrange a takeover of CBS and “become Dan Rather’s boss.” It failed, but two years later conservatives set the stage for an even bigger triumph. For decades, radio and television broadcasters had been required to present multiple viewpoints on contentious public debates on the grounds that they were stewards of the public airwaves. But in 1987, members appointed by President Ronald Reagan to the Federal Communications Commission abolished this ‘fairness doctrine.’ The change facilitated the creation of conservative talk radio and cable outlets to combat perceived liberal bias. Liberals followed suit with programming (albeit less effective) of their own.…most news organizations (with notable exceptions) abandoned their roles as political referees. Many resorted to an atrophied style that resembled stenography more than journalism, presenting all claims as equally valid. Fact checking, once a foundation for all reporting, was now deemed the province of a specialized few.”

But there is even more to the story. While Jesse Helms failed in 1985, eventually the networks were taken over by large multi-national corporations, e.g. NBC is owned by General Electric. CBS is owned by Westinghouse Electric, which has renamed itself CBS. ABC is owned by Walt Disney Company, and of course Fox is a new huge conglomerate.

What does this mean for news coverage? Most importantly the old networks used their news division as loss leaders. News divisions were not expected to make a profit. Their new owners demanded that all divisions make a profit. This meant two things. The news operations had to seek the largest audience possible which led to yellow journalism, and they had to keep expenses as low as possible which led to inadequate resources. But that was fine with Jesse Helms and his Right wing cohorts.

Finally, in 2007 a Bush revamped FCC (Federal Communication Commission) “lift(ed) a 35-year-old ban on companies owning both TV stations and a local newspaper in the country's top 20 markets, saying it was no longer needed… Looser cross-ownership rules would benefit companies such as News Corp. NWSA +1.61% and Tribune Co., which already own newspapers and TV stations in certain big markets and have long operated with waivers of the cross-ownership ban. News Corp., for instance, owns the New York Post and two TV stations in the New York market. (News Corp also owns The Wall Street Journal.)”  The results of this has resulted in a concentration of the industry as summarized by Common Cause in a paper entitled: “Facts on Media in America: Did you know?” which I urge the reader to read here.

But to return to the campaign! As the campaign wound down some voices seemed to think that who wins wouldn’t make much difference, e.g. here is a quote from a Letter to the Editor of my local newspaper: 

“Nationally, I know one thing: If Barack Obama wins re-election, I will get up at 6:30 a.m. on Nov. 7, get my kids ready for school and go to work. If Mitt Romney should win the day, I will get up at 6:30 a.m. on Nov. 7, get my kids ready to go to school and head to work. Nothing will change that. It's fun to debate national elections, or even state elections, but much of what transpires afterwards does not help or hurt us too badly. Our success and failure is not reliant on public policy. Never has been. Will never be. Our nation generally speaking, survives and thrives because of the people, and in spite of the government, not because of it."

And the Des Moines Register, a paper that has consistently endorsed Democrats endorsed Romney because they felt he had a better chance to reach consensus with the intransient House Republicans, than Obama would, without examining what such a consensus would mean for future seniors, its health care system, its educational system, the rights of women and minorities, etc. and the country’s future. 

But the fact is that while the country has dodged a bullet we are still faced with what has come to be known as the economic cliff, with a Republican majority in the House pledged not to raise revenues to meet the nations needs and its looming deficit, and willing to force the nation into default and/or shut down the government unless it gets its way, regardless of the election.

Our President has his work cut out in meeting this challenge, which at this moment seems insolvable. A media that truly informs would be of immense help. But the signs don’t augur well. The last time around the can was kicked down the road with a sequester that called for reductions in discretionary defense spending to be cut by 9.4% and nondefense programs to be cut by 8.2%. The idea was that the prospect of this would cause the “super-committee” to work out a more practicable compromise. This failed because without additional revenues the choice became and becomes between such draconian cuts and not dealing with the looming deficit. 

Now with the looming crisis once again upon us they have already begun to demagogue the issue, demanding that the portion relating to the military must be repealed, without offering any means for offsetting this spending cut. Of course the equally draconian cut in domestic spending, which in the compromise was supposed to make the cuts balanced, they want retained, and possibly increased to make up for the elimination of the military cuts.

But again where is the media? They report extensively on the Republican demands and what the cuts would mean for our defensive capability but fail to mention what the domestic cuts would entail, though the White House has released detailed itemization of the consequences. For those who are interested enough, or masochistic enough, to want to read the full 394 page report it can be found here. But that is what we supposedly have media for. To read and summarize such reports. How many have seen such summaries in our media, whether in print, on TV or even in its electronic form. Oh yes, The New York Times gave us the information. But where was information of such great import? Was it on page one where it belonged? No, it was on page 17 under the heading: “White House Details Potential Effects If Automatic Budget Cuts Go Through.” This is worth reading and rather than being 394 pages long it is only two pages long. See here.

But in the final analysis what does the media give us front and center. They tell us about campaign tactics; who’s ahead, whose behind. They turn it into a sporting event. And worse, as the highly respected The Economist magazine tells us: 

The media, meanwhile, and this can't be repeated often enough, is overwhelmingly biased towards producing exciting political races. Horse-race reporting gives the media the collective ability to shape the kind of narrative it needs in order to report excitingly.

We deserve and should demand better!!!