Here, as promised, are answers to some (not all) of the questions I posed about Ferguson in an earlier post. I’ve focused here on second-order questions about the shooting. The first-order questions are mostly, as I’ve already suggested, unanswerable at this stage of the case.
5. Must we always wait for a verdict before passing judgment on a criminal case?
I think there ought to be a default rule of waiting for a verdict in a criminal trial before passing judgment on matters of guilt or innocence. The principle here is that the accuser bears the burden of proof, and the accused has to be presumed innocent until the accuser meets the burden of proof. In criminal trials, the burden of proof is guilt beyond a reasonable doubt, a fairly high standard as I understand it.
A great deal of the evidence in a criminal case is bound to be in the hands of the contending parties in the case, and for a variety of reasons may not (often is not) publicly disclosed to the media (despite the impression one gets that the media has the ‘inside scoop’ on a case). So declarations of guilt or innocence about criminal cases prior to a legal verdict are bound to be premature, counter-productive, and encouraging of bad epistemic habits.
There are exceptions to this general rule. In some cases, guilt (or innocence) may be transparent enough to obviate the need for a trial, at least as far public, non-legal discussion is concerned. But I think such cases are rarer than people tend to think, because even putatively transparent evidence can be highly ambiguous.
In some cases, a trial may not be possible, and yet a ‘verdict’ of some kind is necessary in order to take action to deal with an undeniable threat to one’s rights. I don’t think, for instance, that the US or Pakistan needs to put the Taliban on trial before deciding to launch drone attacks on them. Nor do I think that ‘extrajudicial murder’ is involved in killing Taliban militants. Unlike the metaphorical talk about Ferguson as a ‘war zone’, northwestern Pakistan really is a war zone (as is Gaza). But de facto war zones involve a de facto reversion to (a Lockean) State of Nature, where lower epistemic standards are both necessary to defend one’s rights against clear-cut aggression, and morally justified. One of the reasons I object to talk of Ferguson as a ‘war zone’ (or comparisons of Ferguson to, say, Gaza) is that such talk induces us to regard Ferguson as a place where lower epistemic standards are prematurely justified. It also induces us to compare like with unlike. But Ferguson is not Waziristan or Gaza. Comparisons of the two are wrongheaded and irresponsible.
It might be objected that a criminal case can drag on for decades as a defendant exhausts his appeals. Should we wait until the last appeal is in to pass judgment? I think that has to be decided on a case-by-case basis. The principle I would adopt is to regard the first jury (or bench) verdict in the case as defeasibly conclusive unless there are reasons to suspect the bona fides of the case. If there are reasons for suspicion, one simply has to wait until they’re resolved, and that can require decades. (I realize that ‘defeasibly conclusive’ is an odd phrase in need of explication, but I think most Policy of Truth readers will understand it, if only because its readers are (a) an extraordinarily sophisticated bunch, and (b) number in the double digits.) It’s worth remembering that the Innocence Project has demonstrated the innocence of people who had previously gotten what seemed like conclusive verdicts of guilt—decades after the fact. The Central Park Five are a vivid example, but for a particularly heart-wrenching and weirdly counter-intuitive example, I’d suggest reading chapter 11 of Kathryn Schulz’s excellent 2010 book Being Wrong: Adventures in the Margin of Error. (Schulz’s chapter is a nice confirmation of Kathleen Wilkes’s insight that real-life cases are often more clarifying than thought experiments.)
[Postscript, September 4, 2014: Here is yet another in the endless litany of exonerations of previously-convicted people who had gotten what had seemed a conclusive verdict of guilt. I discuss a related sort of case from my own personal experience here.]
It might be objected that since courts err, it’s a mistake to wait for a court verdict before forming a judgment on a criminal matter. But it seems to me that the dangers of error are much higher if one doesn’t wait.
Finally, one might object that civil trials, including trials for wrongful death, involve a lower standard of proof than criminal trials, so why not follow suit? I actually have a moral objection to the use of lower standards of proof in civil trials, and find it objectionable that in the American system, one can try the same case twice in two different court systems. So I reject the premise behind the objection. On the view of punishment I favor, there would be no distinction between civil and criminal trials: there would be one trial per case focused on what I think of punitive rectification of the rights violation. (My definition of ‘punishment’ stands outside what I take to be the retributivist monopoly on definitions of that term.)
In the case of Ferguson, I think it’s obvious that the initial rule stands. Where we have a series of ongoing investigations into a criminal matter, it makes no sense to ‘take sides’ or even give the appearance of doing so, not just in advance of the trial, but in advance of the conclusion of the initial investigation. But partisans on both sides have done that re Ferguson.
Consider some of the attitudes expressed in this news item, expressing “support” for Darren Wilson.** At this stage of things, Wilson could either be entirely innocent or a cold-blooded racist killer, or something in between. ‘To take his side’ is to gamble that he is innocent when he could be guilty. To do that is to play Russian roulette with one’s moral and epistemic faculties.
On the other side, consider the attitudes expressed by Michael Eric Dyson in this news item. It’s not enough for Dyson that President Obama wants to wait for the findings of an investigation underway. Apparently, virtue requires Obama to become the blowhard identity-politics version of George W. Bush: he has to meet the violence of what is happening in the streets with rhetorical violence that ups the ante. For a reductio ad absurdum of the view he’s adopting, I’d suggest Dyson’s spending some time in the streets of Islamabad, Pakistan with the supporters of Imran Khan and Muhammad Tahir ul Qadri ,where tens of thousands of passionate but completely mindless protesters are besieging the presidential residence* in order to overthrow democracy in the name of democracy, but cannot articulate either the nature of their grievances, or what they want done in rectification of ‘them’. Whether he realizes it or not, those mindless crowds are the perfect expression of the politics Dyson has in mind. (Incidentally, the supposed contrast Dyson draws between Holder and Obama does not seem to me to be borne out by the facts).
In answer to both sets of partisans, I’d suggest reading Gary Alan Fine and Patricia Turner’s excellent book, Whispers on the Color Line: Rumor and Race in America, which describes the ease with which untrammeled passion leads to rumors, and rumors in turn fuel race riots. My favorite line in the book: “Ultimately, we, the public, are the agents of justice, and we must strive not to be blind” (p. 209). Both Wilson’s supporters and people like Dyson are practically suborning blindness in the rest of us.
[Postscript, August 27, 2014: Two items in today’s New York Times serve as a useful pair of footnotes to what I said here. A letter by Norman Siegel (former director of the American Civil Liberties Union) nicely reiterates some of the themes of my argument, but an op-ed by Erwin Chemerinsky (Dean of the Law School at University of California, Irvine) suggests the need for some qualifications to what I said.
Chemerinsky argues, plausibly, that the judicial deck is stacked against anyone who wants to hold police officers and other government officials responsible for civil rights violations. I’m not qualified to offer an opinion as to the legal merits of Chemerinsky’s argument, but if he’s right, we need to distinguish between two different reasons for waiting for a legal verdict before passing moral judgment on a legal case: (1) an evidence-based reason: we won’t have full access to the evidence until the verdict has been handed down; (2) a quasi-positivist reason: the legal verdict is constitutive of the facts re guilt or innocence. I’m defending (1), not (2). I doubt that anyone would defend a literal version of (2), but it’s worth stating explicitly, so as to differentiate it sharply from (1). The point is that courts have better access to the evidence relevant to guilt or innocence than does the general public (and the press), not that court verdicts magically “make” people guilty or innocent of the crimes for which they’ve been charged. Of course, even (1) is only true as a general rule; given the exclusionary rule, courts sometimes exclude relevant evidence from consideration, thereby handicapping their own access to the truth. But the point is, they have access to the relevant evidence. In other words, the overarching point I’m making is primarily epistemic, not legal.]
6. Can it ever be justified to use a weapon against, or shoot, an unarmed person?
I think it can. One of the better arguments of gun enthusiasts is that firearms level the ‘playing field’ between large and menacing (but unarmed) assailants and the rest of us. And the argument makes good sense. If you have reason to believe that an assailant means you serious harm, and you have no other means of escape, I think you can resort to the use of a firearm. But where possible, you must limit the damage you do to your would-be assailant. What needs an explanation in the case of Ferguson is why Brown was hit with six rounds when one would have sufficed. On the face of it, I can’t imagine a legitimate reason for Wilson’s firing six shots at Brown (he might have lived if he’d been hit with one instead of six), but I’ll leave that to the forensics experts to unravel.
In general, however, I’m surprised by how many stories I’ve read over the years of suspects being shot by multiple rounds, the Amadou Diallo case being the most jaw-dropping example. It almost sounds like a joke: How many armed cops does it take to disable a man? How many rounds does it take to neutralize a human threat? Reading some of these stories, one gets the impression that the police regard criminal suspects in the way that big-game hunters regard big game. It might take six shots to take out a charging lion, but should it take that many to take out a charging human?
7-8. Should the video of Michael Brown’s robbing or stealing from a convenience store before the shooting have been released? Is it relevant to the case?
Eric Holder has described the United States as a “nation of cowards” for its unwillingness to discuss matters of race. Personally, I think there is cowardice in Holder’s suggestion that the video allegedly showing Michael Brown engaged in a convenience store robbery ought not to have been released to the public. I so far have not heard a plausible explanation for why the video ought not to have been released, aside from the claim that doing so would upset people. I find it remarkable after all of the criticism of the hyper-sensitivity of people in the Islamic world (e.g., the Muhammad cartoons, the anti-Satanic Verses protests, etc.) the Attorney General of the United States thinks that the American people have to be infantilized in the same fashion: if the disclosure of information will upset them, the information ought, in deference to their sensitivities, be concealed.
Why not say the same thing about the conversation about race that Holder envisions? Discussions about race might upset some people, too. Why isn’t their prospective ‘roiling’ a good reason for not having such discussions? If white people threatened, en masse, to take to the streets at the disclosure of some untoward fact about Wilson’s life, would that justify concealing it? Many untoward facts (some of them not quite facts) were revealed about George Zimmerman in the wake of the Trayvon Martin case, not all of them obviously relevant to the case. Should they all have been concealed? (The same was true of Conrad Murray, by the way.) Why should anyone think concealment is justified in the current case?
I think the video of Brown’s robbing the convenience store is potentially relevant to the case. Though Wilson stopped Brown for jaywalking rather than robbery, the official police timeline suggests that he was aware that the robbery had taken place, and that he suspected that Brown and his companion, Johnson, were the robbers (or thieves, depending on how you want to describe the event in the store: I’m not convinced it was robbery). There is obvious reason to fear a robber more than one fears a jaywalker. If Brown was high on pot, there is additional reason to think that his judgment was impaired. Nothing in the way of justice is gained by trying to cover up these facts, or possibilities, whichever they turn out to be.
9. Is it too easy for the Darren Wilsons of the world to get away with murder?
This question in effect goes back to question (1) in the original list. It’s possible that even if Wilson ends up being guilty of murdering Brown, there might (in the nature of the case) be insufficient evidence to convict him of a crime because the evidence falls below the threshold of being beyond a reasonable doubt (or being a civil rights violation in the civil context).
Suppose that that’s so, and that a jury hands back a verdict of ‘not guilty.’ Legally, of course, we’d have to treat Wilson as not-guilty. But outside of strictly legal contexts, are we justified in regarding him, in effect, as going through the rest of his life trailed by a cloud of suspicion? Depending on how the evidence turns out, I think we might be. That is in effect the current predicament of George Zimmerman. Even people who accept the verdict in the Zimmerman case might have their doubts about whether he is genuinely innocent in the moral sense. I do. Zimmerman may not have murdered Martin, but he had no business pursuing him after he (Zimmerman) had called the police. He should have stayed put, and his failure to do so strikes me as morally culpable, even if it isn’t legally adjudicable. Something similar would (on this scenario) end up being true of Wilson. Even if he ends up being legally innocent, he might end up being morally culpable of some non-legal infraction, and if so, that suspicion would (and should) follow him in our judgments of him thereafter. A legal finding of non-guilt doesn’t necessarily wash away all evidence of or suspicion of moral wrongdoing. The hard fact of the matter is that a legal finding of non-guilt doesn’t even necessarily wash away all suspicion of criminality, a fact with complex ramifications I can’t do justice to here.
10. Should the testimony of police officers weigh more heavily than those of criminal suspects?
This might have been a tendentious question on my part, but in any case, I regard the answer as obvious. I don’t know the specifically legal status of this rule (or if it’s even a ‘rule’), but I’ve seen it applied often enough in courts of law here in New Jersey: if a case comes down to the testimony of a police officer versus a criminal defendant, the judge will simply assume that it is the police officer who is telling the truth and the defendant who must be lying or in error. Why? Because police officers can be presumed to be truthful, but criminal defendants cannot. In effect, the defendant’s presumption of innocence can be defeated by a police officer’s sheer assertion that the defendant is guilty. The insouciance with which I’ve seen this rule applied is amazing, and I think the remedy is obvious: our courts should stop treating the testimony of police officers as pro tanto more weighty than those of criminal defendants. Everyone’s testimony should be regarded as being on a par, unless there’s positive evidence to the contrary.
One is obliged in a court of law to treat officers of the court with great deference and respect, which they are not obliged to reciprocate: legally speaking, there is such a thing as contempt of court, but no such thing as contempt of citizen by the court. But I’m inclined to think that the latter is more commonly exemplified than the former, and there is no legal remedy for it (aside from the very attenuated remedy of an appeal).
When the judicial system runs roughshod over whatever procedural rights one has, one is apt to feel contempt for or rage at those who run it. Having been on the receiving end of this treatment myself in a court case that had nothing to do with race, I was tempted, in court, to say something that would have gotten me a contempt citation. When, a few months later, I saw the same judge walking down the street on his way to a restaurant, I was tempted to confront and abuse him. I held my tongue on both occasions, but I understand the impulse to lash out, and anyhow, my case was a very, very trivial one (it was a traffic case involving three license points and a $100 fine).
I think one has to experience officialized judicial or police arrogance in one’s own case to be able to grasp the justified rage of the protesters on the streets of Ferguson. I don’t mean that rioting is justified. What I mean is that anger is justified, and that those who feel no anger (and by implication no sympathy for the protesters) ought to ask themselves whether they’ve had the sorts of experiences that merit the same anger. I doubt they have. I’m enough of a cognitivist about the emotions to say that one can’t think by means of anger. (I agree with Ayn Rand’s claim that emotions are not ‘tools of’ cognition.) But I’m enough of an Aristotelian or Freudian to think that justified anger is a potential ally of thought about justice. We need, as Roderick Long has apt put it in a different context, to think our anger—or our apathy, come to that. There’s more of that to do, so more to follow.
*I had originally written “Presidential Palace,” but I think I was momentarily confusing Pakistan with Somoza’s Nicaragua.
**This item makes the point better than the item I originally used.