Month: November 2014

The Mistake of Second-Guessing the Fergusson Grand Jury

A lot of smart and not-so-smart people have been second-guessing the decision of the Fergusson grand jury to not indict Officer Darren Wilson in the shooting death of Michael Brown.

One narrative goes that it was murder, a white cop executing a black man, case closed, let’s protest and/or riot. There’s no reasoning with these people.

Another group more reasonably argues, “The burden of proof for a grand jury is probable cause, a reasonable suspicion that Officer Wilson was guilty of some form of criminal homicide as the charges were laid out for the jury. As we have seen the evidence and the testimony in transcripts, surely there was enough conflicting testimony to meet this low burden.”

Probable cause is a very low burden of proof. We see it most often when police need justification to obtain a warrant for a search or immediate grounds to stop a vehicle. Probable cause can be a driver swerving while driving, a broken tail light, or a scream coming from a house. It can be a lump in someone’s pants in the shape of a gun. It can be the smell of alcohol on a driver’s breath.

Surely the testimony of claimed eye witnesses that Michael Brown had his hands up when he was executed gives probable cause to indict him?

I have to approach this as an attorney, and I want to assume as few facts as possible, whipping out Occam’s Razor.

I start with the fact that this grand jury was not specially empaneled for this case – they had been sitting for months, and were nearing the end of their term. They were specially held over for this case. Nine whites and three blacks. The shooting occurred after they were empaneled. Thus their selection was in no way prejudiced by their knowledge of the case. They were also experienced jurors, having handled numerous cases prior to this one. They knew what they were doing.

The next concept is an important one, that most non-lawyers (or people who have not been involved in court cases that have gone through the appeal process) are unaware of.

When a case has been through a lower court and one side decides to appeal it, most of the time the court of appeal makes its determination on the basis of the record of the case – the transcripts, the pictures of evidence (and sometimes actual evidence), written and sometimes oral arguments by lawyers. Only in narrow circumstances is the case reviewed “de novo” where the trial is actually redone, with witnesses, etc.

When the court of appeal does their review on the basis of transcripts, they accord great deference to the original judge and/or jury, and only overrule the original judgment (for the most part) if they find a major abuse of discretion or mistake.

Why? The appellate judges were not there. They did not watch the witnesses, they did not see their eyes as they spoke, could not see their facial expressions or how they sat or what they did with their hands. Were they nervous? Did they fail to meet the prosecutor’s or the jury’s eyes? Were they confident? Were they sweating? Did they shift in their chair? Did they stammer, or swallow hard repeatedly? Did they look confused when asked follow-up questions? Did they take a long time answering?

These things don’t show up in the reporter’s transcripts. Yet we all know how important such information is to whether we believe someone or not. The appellate judges, looking over witness transcripts months (or years) later cannot see those things, so they give deference to the judge or jury who were there and saw things they did not.  Appellate judges understand that the original judge or jury usually factor the believability of witnesses into their decisions, how they weigh testimony, and that affects the decisions they make.

When we try to second-guess or comment on the grand jury in Fergusson, we are acting like a court of appeal. The more informed of us are looking at the available evidence online, reading the testimony of witnesses, looking at the forensic evidence.

Some are saying that there was enough to raise probable cause for one of the counts they were given, and that Officer Wilson should have been indicted. Others are saying that the evidence was clear that there was not enough to indict him.

But none of us were there in the room when the witnesses testified. We did not watch their faces; we can only read transcripts (those of us who bother to do so). We do not know how credible those who provided the testimony that indicates Officer Wilson committed a crime appeared to the jurors.  Most of us are only reading summaries by others who bothered to read the testimony, so are dealing even one more step removed from the actual ability to judge credibility.

Perhaps more importantly, we were not in the jury room for the discussions after the testimony. We do not know what was said. “Did anyone believe a word that Dorian Johnson said?” “Not me.” “Me neither.” “And Witness 12 was lying about the whole thing – his testimony didn’t fit the forensic evidence and blood spatters at all – I don’t think he was even there.”

Without knowing what the lengthy discussions in the jury room involved, we cannot know whether the testimony that people rely on to say there was enough evidence to satisfy the probable cause standard was even considered as credible by the jury.

The jury can weigh testimony as to its believability or discard it completely. If they discard a piece of evidence or all or part of a witness’ testimony, then armchair quarterbacks looking at a transcript or summary have no way of saying that they should have returned an indictment.

They simply cannot know what went into the jury’s decision.

The fact is that no one outside those involved in the grand jury process knows why they failed to return an indictment.

I believe that we should accept that this grand jury a) knew its job, b) took its job seriously, knowing the stakes, and c) performed its job to the best of its ability – unless and until we have concrete evidence otherwise. To date I have seen none, other than opinion based upon disagreement with the outcome or ignorance of the process.

I honestly don’t know if Officer Wilson should have been charged with a crime, because I wasn’t there with the grand jury. There is a part of me that believes that something short of killing Michael Brown should have been sufficient, but I also wasn’t there that day either, and I wasn’t in Officer Wilson’s mind knowing his thoughts or apprehensions (or Michael Brown’s mind, for that matter). It may well have been Officer Wilson’s only option (or perceived option) for self-protection, or at least a justifiable defense under the law.  The grand jury evidently thought so, or at least believed there was not enough credible evidence to indict Officer Wilson under the very low probable cause standard.

And bottom line – there are consequences, sometimes fatal, for attacking an armed police officer.


Understanding My Muggers – White Guilt and “White Privilege”

Conservative web sites (and I gather Rush Limbaugh) sent people scurrying to an absurd article on The Hoya, the oldest student newspaper at Georgetown University, entitled “I was Mugged, and I Understand Why.” This is a fairly predictable Leftist student’s reflection of White guilt and excusing two Black muggers who took his cell phone and money at gunpoint.

The author, Oliver Friedfeld, bills himself as a senior in the School of Foreign Service. As scary as his saying things like “we should get comfortable with sporadic muggings and break-ins” because we have given these poor fellows no options in life, I find it more unnerving to believe that soon he could be working in Secretary Kerry’s State Department. This could well be his application essay. If only he had described the officer who took his statement as having an attitude “reminiscent of Genghis Khan.”

So we have a future State Department employee saying we should get used to criminals attacking us, and that he does not begrudge them his cell phone and cash. I don’t see any possible parallels with terrorism, beheadings, etc. None at all.

The comments have run 95% negative, driven in large part by the promotion among conservative media no doubt. The few defenders have raised the meme of “White privilege,” that perennial go-to by the Left to replace reasoned argument and deflect debate. Like “scientific consensus” and “the science is settled” in global cooling global warming climate change, “White privilege” is an invisible, impossible to disprove (in Leftist minds) explanatory theory that is wonderful because it is a conversation stopper.

The nifty thing about “White privilege” is that it is not, as Leftists believe, impossible to discredit. I have a theory on the genesis of “White privilege.” I may be wrong, but since no one reads these posts, no one will correct me.

Before we had “White privilege” we had “institutional racism.” I believe that “White privilege” remains a Leftist meme because “institutional racism” failed to gain traction. Both are the kind of theories the Left loves – invisible, impossible to prove explanations that divert attention from real causal relationships and put the blame on the fallback bad guys, White males (for the most part).

“Institutional racism” was short-lived because it was overtaken by history. In my lifetime I have seen the argument go from Blacks (and we have generally always been talking about Blacks rather than other minorities) fighting for the right to freely vote to the number of Black senators to a Black president. We went from Blacks being allowed to go to public schools to Blacks being allowed to go to prestigious law schools to Blacks being on the Supreme Court. So-called Black leaders want to ignore the enormous progress made in the last 50 years; their limousines and five-star hotels and $5000 suits and Rolex watches depend upon portraying Blacks as having no upward path to prosperity.

Unfortunately for the concept of “institutional racism” also was the success rate of Black immigrants from Africa and Haiti, among other foreign countries, which closely paralleled White when controlled for education after a couple of years in the U.S. Their skin color didn’t seem to be a problem, so institutional racism didn’t seem to hold them back.

So “White privilege” was adopted, another invisible but “it’s not the Democrats’ fault” explanation of the increase in Black illegitimacy, crime, drug addiction, incarceration, unemployment, etc., but more importantly for the discrepancy in outcomes between Whites and Blacks.  Whenever someone raises the issue of how “White privilege” does not seem to impact Asians, the Leftist response is generally either, “You are a racist!” or “Look, a squirrel!”

The problem Leftists have with “White privilege” is a lack of intellectual rigor. They still depend on and refer to the “seminal” work of Peggy McIntosh, associate director of the Wellesley College Center for Research on Women in 1988, “White Privilege: Unpacking the Invisible Knapsack”, part of ““White Privilege and Male Privilege: A Personal Account of Coming To See Correspondences through Work in Women’s Studies.

I want to be charitable here and posit that those Leftists who still refer people to Ms. McIntosh’s work have not re-read it since it was published in 1988.  They can’t possibly have read it since the election of Barack Obama to the presidency.  Please God, tell me they are not still sending people to this document having re-read it since 2008.

Ms. McIntosh’s piece, which is uncritically accepted by true believers, is set up like a Jeff Foxworthy routine. She seeks to set out statements which, if you can answer them in the affirmative, indicate that you have White privilege (and are probably also a redneck.)

Yet anyone reading these and applying a modicum of common sense and historical perspective would realize that only if they are viewed through the lens of bias and a distorted view of America as unchanged since the 1950s (where Democrats like Bull Connor ordered fire hoses and George Wallace stood in the school house doors) do they apply.

Here are the first six of the 50 statements that Ms. McIntosh (and Leftists who believe they prove White Privilege exists today) say are still answered yes today. Each and every one are evidently untrue to any open-minded (and historically-grounded) person.  The remaining 44 are equally absurd in today’s world, but I am not young enough to debunk them all before my nap time.

“1. I can if I wish arrange to be in the company of people of my race most of the time.”

She appears to be saying that only White people can count on being with other people of their race at work or at school, where most of us spend our time (or in the home, if we stay at home during the day; I assume that would count childen).  How many people think this is a reasonable conclusion?  Show of hands?

Here’s the thing – in Wellesley, MA where Ms. McIntosh lived when writing this piece, there were fewer than 500 Blacks among a population of over 20,000 (I couldn’t find demographic stats before 2000).  She appears to have been generalizing from her own experience.

I suggest that it would be a very rare Black person today who works in a situation where there are not other Blacks in the workplace.  The same is true for Hispanics.  Thus they could answer this in the affirmative.

Perhaps others could not (Samoans?).  Does that mean there is a Black privilege?  A Hispanic privilege?  That disadvantages Samoans?

Depending on your race you may not always be able to be in the company of some people of your race unless you work with family or friends. But people make choices for work and pleasure based upon what is important to them.  If being with people of your race is important to you, one of the wonderful things about America is that you have the freedom of association to do just that.  You have choices.  Make them.

“2. I can avoid spending time with people whom I was trained to mistrust and who have learned to mistrust my kind or me.”

This one betrays Ms. McIntosh’s racism, and problems with her parents.  She was trained to mistrust people?

I wasn’t trained to mistrust anyone.  OK, I was trained to mistrust carnies.  And door-to-door vacuum salespeople.  But mistrust people of other races?  No.  If I had even suggested that as a kid I would have gotten a hair brush or belt to the bottom.  Of course, that would have gotten my parents in trouble today.  Back then it meant my parents raised a kid who was polite, never got into trouble, and got good grades.  Now I would be abused.  They’re both gone now or I would sue.

And notice the double standard – she (and thus “Whites”) was “trained” to distrust Blacks (or other minorities), but they “learned” to distrust her (Whites).

How in today’s culture can one avoid spending time with people of other races?  Only if you are a shut-in.  If you go to the store, if you go to the movies, if you go on public transportation, if you walk down a street, if you go to a sporting event, if you go to work, if you go to school – if you live, you will be with people of other races in America.

It was that way in 1988, even at Wellesley.  It is even more so today in 2014.

Of course, progressive Wellesley, Massachusetts is pretty lily White.  Only 2% Black.  In her ivory (White) tower perhaps she believes that the rest of America looks like the town she chose to live in, but her anecdotal experience is an outlier.

Thus it appears that an entire theory of “White privilege” is founded in part on a myopic academic’s personal experience in a limited community that has kept “those people” out (or maybe “those people” have the good sense not to want to live among people who look down on them so).

It’s always amazing how “progressive” communities of affluent White Leftists who are so sympathetic to the plight of minorities only let them into their communities during the day for service work.

“3. If I should need to move, I can be pretty sure of renting or purchasing housing in an area which I can afford and in which I would want to live.”

This is not a nuanced argument that might leave some room for discussion, regarding possible factors in some markets with some lenders (and loan officers) relating to qualifications for loans and red lining and such. Most studies I am aware of in the area of housing show that when factors such as employment, collateral, job history, credit score, etc. are balanced, race and ethnicity are not a factor in qualification or purchasing. Ms. McIntosh appears to assume these factors are not in play (I suspect this level of analysis is beyond her).

No, what she says is that if you have the money (cash or qualified loan) you must be White privileged if you can rent or buy anywhere you can afford.

Let’s look at the converse – you cannot be certain you can buy or rent anywhere you want unless you are White.

Georgetown is pretty lily White. A little over 85% White. How did those 14%+ non-Whites sneak in? My theory is that they had the money and bought/rented homes and apartments. No one told them they couldn’t in one of the most exclusive places to live in America.

Beverly Hills, CA. About 89% White. Somehow about 11% of non-Whites were allowed to buy or rent homes there without “White privilege.” Mill Valley, CA, where I practice, pretty White place, 89% White, but 11% non-Whites are still able to rent or buy if they can afford it.

Aha! The small numbers prove that not everyone who wants to can move there because of skin color, right? Sorry, I’m playin’ witcha.

Maybe minorities don’t want to live in such snooty neighborhoods.  Maybe not as many minorities can afford to live there (a different issue, an outcome issue). Notice anything? These are all progressive bastions. Maybe these progressives are somehow keeping minorities from moving into their communities; that’s as good an answer as any other, absent evidence to the contrary.

Go up the road from Mill Valley, CA to Vacaville one county up and Whites drop to 66%. A lot fewer liberals in Vacaville, a lot less money. A lot more minorities. Interesting.  Maybe it is simply a matter of money, what people can afford.  If it is an economic issue, then this question is meaningless.

The real point is that people with common sense know that a Black orthodontist with good credit and money in the bank can buy any house she or he can afford anywhere they want today. They won’t have any flaming lower-case t’s in their yard (for you South Park fans). It is not White privilege, it is money privilege. It used to be called “the American Dream.” Now it’s called elusive for most everyone.

“4. I can be pretty sure that my neighbors in such a location will be neutral or pleasant to me.”

Anyone these days can only count on neutral, unfortunately.  Where I live in Flagstaff part-time it is different, and some of my neighbors in CA are friendly, but gone are the days when neighbors dropped by for a cup of sugar.  At most you expect a nod or a wave.

You’re much more likely to get animosity if you park in the wrong spot, play loud music, or leave your trash barrels out on the street.  Heaven forbid if you violate homeowners’ association rules.  Then you will face hostility.

But a minority moving into a non-minority neighborhood?  Not a big deal except in the minds of Leftists.  Hasn’t been for years.  Except in “progressive” neighborhoods who have managed to keep minorities out somehow.

How do they do that?

One final secret that nobody likes to talk about. White people – progressive, conservative, libertarian, whatever – still don’t want to be called racist. And they’re not, at least not 98% of us. So they tend to go out of their way to show that they are not. It’s one reason Barack Obama got elected twice – folks wanted to show that they were not prejudiced – see how far we’ve come? So when Blacks move into their neighborhood, they go out of their way to welcome them, even more than if they were White. Come on, folks. You know that is true. Same way when a new minority is hired at the office and you are a little nicer to them right off the bat than if they were just another White guy. It’s the way White folk have been conditioned since the 1960s, in part because we truly want to show that we have overcome the prejudices of the past, but in part because we do not want to be accused of racism.

I don’t make these things up. I just observe and report. Don’t blame me for being beautiful.

“5. I can go shopping alone most of the time, pretty well assured that I will not be followed or harassed.”

The key here is “most of the time.”

There are shopkeepers, in high-crime or low-income areas, who monitor shoppers closely.  They do this because of experience, because they lose a lot of money to theft.  In the language of point 2 above, the have “learned to mistrust.”

The shop owners are mostly minorities themselves (like the shop owners who were burned out in Fergusson), so this is not a “White privilege” thang.  If the shop owners lost money to White shoplifters they would follow White shoppers around.

Nothing to do with privilege, except in a Leftist’s mind seeking signs of discrimination and shutting off critical thinking. Outside these few shops, not a problem.

So most of the time, in most of the stores, anyone can shop without being followed or harassed.  Unless they act suspiciously and catch the eye of store security or staff.  Then the staff may monitor them as their job requires, regardless of their race.  That’s just common sense and good business.  It also protects the consumer by reducing theft and keeping prices down.

It’s not a plot against the minorities, it’s a plot against shoplifters.

“6. I can turn on the television or open to the front page of the paper and see people of my race widely represented.”

For anyone who has paid attention for the last decade or three, the answer to this is that whether you are Caucasian, African-American, Hispanic, Asian, or whatever flavor of the wondrous variety of humanity, you can find yourself in the media.

For grins I just flipped through the first fifty or so channels of the TV. Counting voices on cartoons (with three kids and three grandkids I know cartoon voice actors, so don’t play the voice prejudice card on me!), discounting animal documentaries (“behold the majestic penguin”), and animated soap bubbles, 35 out of 45 had non-white actors in the five seconds I allowed myself to view each channel. See how I sacrifice for you?

Again, it defies common sense to claim that only Whites get to see their race widely represented in the media. OK, the hosts of MSNBC are predominantly White males, I get that. But in those fifty channels I surfed, three were in Spanish, one was BET, and two had black comedies with predominantly Black casts (not on BET). That’s at a random moment I got up and turned the TV on.

Hardly scientific, but enough to make my point.  And it’s a point we all should intuitively and experientially agree on.  Name your favorite show. Does it have minority actors in the regular cast?

Advertisers and casting directors want to use people of color. One of my former clients is from Iran. He has two beautiful granddaughters he told me were sought after by advertisers because their almond skin and exotic features could be taken for a number of races. He understood and delighted in this; it was money in the bank for their college funds.

I dare say that if you pick up any clothing ad you will find a veritable Colors of Benetton potpourri of races and many of those unidentifiable “What race is she?” models who could be any race – handy!

For years now each movie or TV group of friends had to have a Black, a Hispanic and a White kid (as did gangs). Bosses had to be Black; judges usually were Black and a woman. In the 1970s, movies and TV shows often used a Black as an authority figure but kept the role as a minor one, in effect saying, “Look, the Captain is Black, see how progressive we are, now let’s focus on the two white cops.”

Now we expect that roles are given with a understanding of racial diversity as an integral and non-cynical part of the plot structure (in Psych, the racial diversity gave plot twists that would not have been there if both leads had been black or white).

We see an interesting social evolutionary comparison in the re-imagining of the intentional (and unusual, for its day) racial casting of Gene Roddenberry’s original Star Trek series with the new movies; it no longer is a bold statement (such as Uhura’s kissing Kirk, the first scripted interracial kiss on TV), but simply an organic and natural thing, something we live with and experience in our lives. It’s hard for us today to imagine how daring this was back in 1966.  We live in a different (and better) world.

This is why Ms. McIntosh’s point is so illegitimate today. Of course people of different races can see their races in print and TV. Maybe Samoans cannot see Samoans in the papers or on TV often, but do they really expect that? They represent .056% of our population. I suppose every time they see Dwayne “The Rock” Johnson they are getting their percentage worth.


Unfortunately, whenever you try to discuss issues like racism and “White privilege” with Leftists (or actually anything substantive, for that matter) they do not wish to engage. Simply because you do not accept what they consider to be gospel, there is no point in even discussing it with you and they generally turn away. There is no open mind, no room for you to ask them to consider facts to change their mind.

An ideologue is impervious to reason, because it is a matter of faith, not logic.

They then go back to their Leftist friends and say, “Lester was trying to tell me White privilege doesn’t exist.” The friends shake their heads and laugh.   “He is so White!” “Those guys cannot see what is right before their noses!” “And Lester sure has a big one” Chuckles. “It just proves how much White privilege he has!” I’ve actually listened in on such conversations at parties. Yes, I used to go to parties. A long time ago. Before they stopped inviting me. Because I listened in on private conversations. About me.

For Leftists, White privilege just is; it is an article of faith. The fact that you refuse to accept its existence proves that it exists and that you have it (if you are White). If you are a minority and refuse to accept its existence, you are a self-hating White wannabe (try saying that to my wife; but wait until I’m there to watch. Please).

One of the special super-secret, I’m smirking at you because you don’t get it things about “White privilege” believers is that it is so invidious and invisible and pervasive that you as a White person cannot see it or feel it or understand it. Only the White people who know it is there and point it out to you and lecture you about it can see it.

It’s like the people with wisdom and vison in the Emperor’s New Clothes. If you argue against it, it is because you are too stupid to see it.

But look, the boy says. There is no science, no empirical data. There is no common sense, because you cannot apply common sense to these statements. They simply do not apply in today’s world.

Silly boy.