Ferguson: Justice Is A Journey, Not Just A Destination

Let me declare at the beginning: there is simply no excuse for the burning and looting and violence we saw in Ferguson on Monday night. Most of the people who committed those acts were not protesters. They were opportunists. Criminals. And for those few who were genuinely disgusted by the non-indictment of Darren Wilson and who took their anger out on their surroundings: we don’t settle things that way in a civilized country, no matter how outraged one is about an outcome. It’s unacceptable regardless of what one’s grievance is. It is unquestionably immoral, ultimately counter-productive, and therefore utterly stupid.

Let me further declare that I don’t know whether Officer Wilson is, or should have been found, guilty of any crime. I have seen and read the accounts of various witnesses—including Wilson—some of wilson and brownthem conflicting with each other, and I acknowledge that those accounts can be interpreted in more than one way, as is always the case. I have heard specialists discuss the autopsy results, which also can be interpreted in several ways, including supporting Officer Wilson’s claim that Michael Brown was the aggressor or supporting the claim that Michael Brown posed no threat when the fatal shot or shots were fired. I have seen other evidence in the case, recently released, none of it case-closed conclusive one way or the other, as far as I can tell.

I will also admit that Brown’s behavior just minutes before he was shot—when he stole cigarillos from a store and bullied his way out—could easily be interpreted as supporting Officer Wilson’s account of his initial encounter on the street with an aggressive Brown, even though strictly speaking Brown’s prior behavior had nothing to do with whether Wilson acted lawfully when he fired 12 shots at him, one of them entering through the top of his head.

But even though Brown’s aggressive behavior in that convenience store is technically unrelated to what happened minutes later, it is impossible to ignore the fact that the video of Brown bullying his way out of the store at the very least makes Wilson’s account of a demon-faced aggressor plausible to many people, including people sitting on a grand jury. And it is quite likely that that video, and the images from it that were widely distributed, doomed any prosecution of Officer Wilson from the start, no matter whether the officer’s fact-tailored story of what happened seems “difficult or impossible to believe.

That is why prosecutor Bob McCulloch had little trouble, through his assistants who presented evidence to the grand jury, convincing the jurors that Officer Wilson acted lawfully, even though that is not normally how the grand jury process works. McCulloch’s unusual use of that process, in which his team clearly was acting partly on behalf of Wilson, has a lot of African-Americans angry. Think about it:

1. An unarmed black teenager, who some witnesses say either had his hands up or was otherwise not aggressive, is killed by a white policeman.

2. What followed was an almost unprecedented use of the grand jury system, in which prosecutors presented voluminous amounts of evidence in what was essentially a trial that the prosecutors manifestly controlled.

3. That nearly unprecedented quasi-trial before the grand jury was followed by an equally unprecedented decision not to indict the shooter—almost all such juries hand down indictments if asked to by a prosecutor—done by a grand jury that was 75% white.

Those items and others are why a lot of African-Americans look at this case and find more reasons than ever to doubt the justice in our justice system.

mccullochThat being said, my first thought, when I heard that the district attorney would announce the grand jury’s decision in the Michael Brown shooting case on Monday evening, was why do it so late at night? That was exactly the wrong time to announce it, as many have now realized. There was no compelling reason to announce it around 8:30pm. It was as if the entire event was designed to cause what we in fact witnessed.  It seemed to be fashioned in order to provide fuel for a easy-to-ignite fire. It took only a handful of violent people, those who burned buildings and cars, threw bricks and fired shots, to make the whole community look uncivilized and out of control. Late into the night, Jon Belmar, St. Louis County Police Chief, said,

I really don’t have any hesitation in telling you that I didn’t see a lot of peaceful protesters out there tonight….What I’ve seen tonight is probably much worse than the worse night we ever had in August.

Yeah, well, the Chief should take that up with the prosecuting attorney. Except that Chief Belmar told reporters that it wouldn’t have mattered much when the announcement of the non-indictment was made. Huh? He also said that it would have been a violation of the grand jury process to get advanced notice as to whether there would or wouldn’t be an indictment, so that he could better prepare. What? Hooey.

What happened was an utter law enforcement failure, from the governor on down. These people weren’t powerless in this situation. They could have influenced the timing of the announcement of the decision and been better prepared to deal with the results. (I won’t even get into how Governor Nixon could have and should have appointed a special prosecutor for such a sensitive case, especially since Bob McCulloch, whose policeman father had been tragically shot in the line of duty by an African-American, had close ties with law enforcement and had a history of protecting the police in four out of four similar cases.)

As I said, the whole thing, from the announcement last week that the decision was imminent to Bob McCulloch’s press conference on Monday night, seemed orchestrated to produce the results we all saw on our TVs Monday night. But I confess that I don’t really have the slightest idea what was in the head of the prosecutor. I don’t know why he did what he did when he did it. I don’t have anything but flimsy circumstantial evidence that he was trying to maximize the negative reaction that would, most certainly, take the focus off Bob McCulloch and put it on the black community in Ferguson and elsewhere. I hope that his decision to make the announcement well into the evening was just a very misguided act by a public official who was trying to do the right thing and nothing more cynical than that.

In any case, prosecutor McCulloch’s weird theatrics Monday night struck me as a oddly cold. Like ice. Like ice that would, paradoxically, unleash a protest of fire into the night. His team had brought the case to the grand jury as both prosecutor and defense, which one lawyer said was “not the normal process” and another called “rare.” Yet another lawyer said—a former prosecutor—that not only were McCulloch’s actions during the grand jury process almost unheard of in his long experience, but that often the process is almost as important as the outcome itself.

He’s right about that. The process has to be right. Justice is a journey, not just a destination. It matters how outcomes are achieved. It has to appear that the prosecutor is as aggressively pursuing justice for a dead black teenager killed by a white policeman as he would be for a dead white policeman killed by a black teenager. It may be that had the system run its natural course, from indictment to trial to verdict, Officer Wilson would have and should have been found not guilty of any potential charge. But this McCulloch-guided process didn’t even get to a charge, even though all that was needed to indict was “probable cause.” Thus there will always remain large doubts as to Wilson’s innocence or guilt.

From the beginning, after Michael Brown was shot and killed on August 9, the process did not seem right. It didn’t seem normal. Michael Brown’s body was left on the hot August street for more than four hours, uncovered part of the time. Officer Wilson apparently was never required to offer an official written statement after the incident nor were there any recordings or transcripts of interviews done with him at that time. His first comprehensive explanation of what transpired was a month after the shooting—in front of the grand jury and without real cross-examination—plenty of time for him to lawyer up and shape his story to fit the facts that were subsequently and widely available. That in itself raises suspicions about the process. Then there were the leaks of certain information, leaks that always seemed to exculpate Officer Wilson, like the release of that video of Brown stealing the cigarillos. Tack on the quite unusual way the prosecutor handled the grand jury and you have understandable questions about the justice process, even understandable anger.

President Obama said two days ago that “in too many parts of this country, a deep distrust exists between law enforcement and communities of color.” No doubt about that. Much of that distrust is generated by police behavior, to be sure. But a lot of it is generated by the legal process itself. The President, ever the optimist, continued:

…there are still problems, and communities of color aren’t just making these problems up.  Separating that from this particular decision, there are issues in which the law too often feels as if it is being applied in discriminatory fashion.  I don’t think that’s the norm.  I don’t think that’s true for the majority of communities or the vast majority of law enforcement officials.  But these are real issues.  And we have to lift them up and not deny them or try to tamp them down.  What we need to do is to understand them and figure out how do we make more progress.  And that can be done.

I hope he’s right. But what happened in Ferguson, Missouri, here in 2014, makes me wonder if he is.


[image of Officer Wilson on the street is taken from Piaget Crenshaw’s video]




  1. ansonburlingame

     /  November 26, 2014


    A good and balanced blog for sure and I applaud your appoach and thinking. I would hope that now all of America can turn to the real issue before us, the fairness of our system of justice to ALL Americans. There is much work to be done on that account and Ferguson is yet another flag in the history of American jurisprudence that more fairness, under our system of justice, needs more attention.

    I detest turning the Ferguson case into yet another case related to race. Race alone is NOT the issue. Being sure that all Americans get a fair and equal shot at defending themselves when charged, or even when arrested before charges are brought to bear or even accosted by law enforcement before an arrest is made is the issue.

    If my wife was found dead I would expect to be defended, aggressively, just like OJ was so defended. That is impossible to achieve, a multi-million dollar team of high priced lawyers, defending everyone. Well if everyone, every red neck, black man, brown man or otherwise good citizen cannot be defended in the manner OJ was defended, what are we the people to do? Is that not a burning issue, an issue of legal fairness to achieve justice? Defendants themselves pay to be defended.

    Here is a shocking idea. When a felony is charged the victims do not pay for the prosection, never in a felony case. We the people, collectively pay for the prosecution of every felony trial or investigations leading up to such a trial.

    But defendants must pay for their own defense, against we the people, our government funded by ……. In that respect a defendant pays for part of his own prosecution I suppose. Is that fairness in terms of representation before the bar of justice, a court of law? Prosecutors have the whole team of law enforcement to do their investigations. Defendants pay for their own team, if they can afford them.

    Along that line of thinking the job of a prosecutor is FIRST a difficult job to decide if a court of law should decide the matter. A good prosecutor must decide to bring charges in the first place. Victims can’t bring felony charges, only prosecutors can do so, we the people. In that sense potential defendants pay for their own prosecution. Is that fair?

    It is clear to me that an experienced prosecutor began his due dilligence, investigating the death of Brown in an unbiased manner, without bias or preconceived notions based on media crap. We don’t select such officials based on family history, we do so based on their own qualifications. You no more KNOW that this prosecutor was biased any more than I know several witnesses committed perjury.

    The prosecutor and his staff conducted their own investigation and in all likelyhood said, after reviewing the evidence, not before, that this case was NOT one with probable cause to indict. That would have been based on sound legal experience, not personal biases. But if you or others can prove in a court of law that such bias was present, go for it if you like, against the prosecutor, not the one police officer now.

    But the prosecutor, to avoid any charges of racial bias decided to ultimately let 12 honest men and women decide whether to indict, or not. Did he try to slant the evidence one way or the other? Not that I have seen. Could a good prosecutor have grilled the police officer in cross examination? Sure they could have. But if they did THAT, I would expect other witnesses to be grilled in cross examination as well. Instead the prosecutor choose to let ALL speak and let the jury decide. Is that unfair????

    If Brown’s family still believes racial bias caused the death of their son, file another law suit now but pay for that lawsuit on their own would be my call. But OK, if Eric Holder et al, using the full force and power of the Federal Government choose to use your and my money to file such a lawsuit, go ahead, legally and try to prove the case in another court of law. I’ll simply sit back and await another jury verdict in that case.

    We the people need to move beyond Brown and one cop. Justice in accordance with our system of justice has rendered a “verdict”. Had the grand jury decided to indict I would not have protested, etc. either. I would just have sat back and awaited another verdict of guilt of not guilty, instead of the no probable cause to indict.

    It is my hope that this debate, herein or elsewhere around the country, focus on the overall fairness of our system of justice for ALL Americans, not just blacks, browns or other minorities. There is work to be done for sure to achieve justice by treating everyone equally in terms of who pays for both prosecution and defense and all associated with any and all investigations.



  2. King Beauregard

     /  November 26, 2014

    “The prosecutor and his staff conducted their own investigation and in all likelyhood said, after reviewing the evidence, not before, that this case was NOT one with probable cause to indict.”


  3. I got a post on my Facebook page that pretty much says it all for me:

    Dr. James Martin shared WBEN NewsRadio’s post — “These are not protests. These are riots. Stop the rioting. This violence makes me want to look around and say “Where are the police?’ I don t feel safe. Isn’t this ethos how this mayhem got started? Time to respect human dignity and integrity. Time to recall what is decency. And, from there, move forward toward a more just society. Burning small owners stores only fuels rage against the main point of justice for all. Factoid. This was handled in a legal way. A grand jury made a decision based on looking at all the evidence. In America we do not judge by mob. Do you want the KKK running everything? Factoid…. A current poll on NBC shows that seventy nine percent of those polled support the grand jury process. If you do not like that, I can understand that. However, not liking that does not give you the right to sock the guy next to you in the nose. Or, run and tackle his spine.

    “Want to blame someone. My colleague Patrick Kelly shares his astute analysis. One more time, tobacco, is the gateway drug, leading to violence & death. This whole Ferguson thing lies on the shoulders of the Swisher Sweet company. The new crack. Or is it the old crack? Either way. Dammit, this is somebody’s fault besides the big, stupid, bully kid & the, at least, semi racist cop’s. Big Tobacco. That’s the problem. Burn down the house That’ll show ’em all. Dammit. Swisher Sweet, indeed.



    • King Beauregard

       /  November 26, 2014

      I wonder if you ever consider the possibility that, perhaps, America looks very different if you’re black, and rather than the system working with good intentions albeit imperfectly, to a black person’s eyes it instead appears indifferent at best and deliberately cruel at worst.

      I see you complaining about the injustice of rioting and destruction, but you perceive nothing at all improper with what preceded it. It’s easy to say “time to respect human dignity and integrity” if you ignore, say, how the city let Michael Brown’s body lie in the street for hours. That’s what you do with a rabid dog, or a black kid apparently. (Same thing happened with Trayvon Martin you may recall.)

      “Factoid. This was handled in a legal way. A grand jury made a decision based on looking at all the evidence. In America we do not judge by mob. Do you want the KKK running everything?”

      Oh you funny funny man. It used to be that the KKK did run everything in a lot of places, except that they ran things in their day jobs without their robes on. But it was all perfectly just and fair because it was “handled in a legal way”, right?

      And “handled in a legal way” is a strange phrase. It suggests that one is aware something isn’t right abut this case, and can’t manage to claim that justice was done. It says nothing about the quality of the handling, in fact it goes out of its way to say nothing.

      Liked by 1 person

      • Since Ferguson, and especially since the grand jury’s decision, I have run into a lot of people, all white, who are justifiably appalled by the subsequent rioting, but who just can’t understand what all the fuss is about. They don’t feel it in their white bones and thus they can’t imagine that such feelings have any legitimacy at all. It is very depressing to me and quite sad. More than that, it is dangerous to ignore the fact that so many of our fellow citizens have no expectation of justice in America.



        • King Beauregard

           /  November 29, 2014

          I wonder if there’s any way to reach that part of them that was and is terrified that the monkey* in the White House is going to crack down on whitey. Because that’s what blacks feel is their reality, not some vague sense that it will happen some day, but it has been the case for decades and centuries.

          As has been noted elsewhere, I happen to have the luxury of being merely outraged by the Wilson grand jury, as opposed to fearing that it may lead to the callous shootings of me or my family. Being white means you don’t really have to worry about these things, until the blacks get all uppity for no discernible reason of course and then it’s time to crack down.

          *: By “monkey” I of course I mean one of the first animals sent into space, so you see it’s actually a compliment to Obama for being such a pioneering, groundbreaking president. If only we could send Obama into space … oh hell, did i say that out loud?


    • Herb,

      I don’t understand the point. No one is arguing on behalf of rioting. We are arguing on behalf of justice, which was incomplete in this case.



      • Duane,

        This is what happens when you’re trying to make an intelligent comment, but are in a rush to get out of town, then hurriedly copy something off the interweb, scan it, post it, then get out of town for a few days.

        My bad. If you have a delete button for my comment above, please feel free to use it.

        Meanwhile, I’ll chalk the thing up to a learning moment and apologize for the consternation.



  4. Troy

     /  November 26, 2014

    Why didn’t officer Wilson just shoot the kid in the leg or legs to stop him when he was so called in fear for his life? Hmmmmmm….


    • I thought the same thing, but apparently there is a protocol in place when officers use their firearms: if you aren’t prepared to kill someone, leave it in the holster. While I understand that in some situations, it is hard for me to understand it in this particular case. There should be wisdom applied in the use of force and that wisdom should come not just with training upon training, but with experience.


  5. Kevin Beck

     /  November 27, 2014

    None other than Antonin Scalia agrees with Duane’s assessment of the Grand Jury process used in this case. I’d post a link, but my teen son is still in bed! 🙂


  6. ansonburlingame

     /  November 27, 2014

    About two years ago my then 16 year old grandson was hit by a speeding driver running a stop sign. The driver fled the scene, a hit and run. Fortunately my granson suffered only mild injuries after his car rolled about 14 times as deemed by officers at the scene.

    The driver left his front lisence plate at the scene and within about two hours the cops were at his door. No one answered the door and the cops chose not to obtain a phone warrant to enter, forcefully. That bothered me, as there was lots of strong evidence that not only did the driver hit and run, he was also drunk, with several arrests and convictions for that offense in the past (DUI), beer cans in the trunk and a stong smell of alcohol in the parked truck, in the man’s driveway. Cops also heard someone moving around behind the locked doors in the house.

    It took about six months in multiple court rooms to decide to prosecute. I met once with the prosecutor and had many emails exchanged with the victim’s advocate in the prosecutors office. She did a great job explaining each and every step in the process. She even sat with me in the court when the defendant, well represented by a public defender plead guilty and was sentenced to 4 years in jail. He served only a year and has had further interactions with the law since he got out.,

    The only reason my grandson survived was he was wearing a seat belt and was driving a well made and strong car, fully capable of keeping the interior of the car safe with a smashed roof and accordian like front and rear (having rolled head over heels 14 times). Rather amazing engineering to say the least!!

    That is my only interaction with law enforcement, other than a few speeding tickets when I was younger (and I in fact had been speeding). But I will add that never have I experienced aggression by a cop, never. Abrupt, bossey, sure I have seen such. But the only time anyone that I have read about that really got into trouble (other than being stopped by a cop for….) was when they took it upon themselves to argue with the cop(s).

    If every citizen exercised respect for authority, even when authorities deserve no respect (maybe) things like Ferguson never happen. Just shut up, do what you are told to do and argue later. Only when citizens decide to argue with cops do things sometimes turn violent.

    Most cops, high school graduates only in most cases, do not like being called a “piece of shit”. Maybe less than 1% of such cops however, today, will immediately escalate the situation based only on verbal abuse. But you can bet your bippy when verbal abuse towards a cop escalates to physical confrontation, well there we go, again and who knows when/where it will stop.

    No one, me included, likes to be told we have done something wrong. A kid in school receiving correction for behavior from a teacher hates it (and some escalate the situation in a class room). People that argue with cops seldom win much at all. The only time machoism works is in the “hood” a baroom or in blogs, sometimes.



  7. Some thoughts on the Michael Brown case, as discussed in this post:

    Agreed: there is no excuse for rioting and looting. As imperfect as the justice system is, it nevertheless exists and operates along with freedom of speech and freedom of the press. It should be a lasting lesson of this, I submit, that a better racial mix on the Ferguson police force and in the city government, and others around the country, would go a long way towards restoring credibility in the judicial process.

    The grand jury process is often misunderstood, even in these pages by experienced bloggers like us. It is intended to subject prosecutorial discretion to the judgement of a panel of ordinary citizens as a check on corruption, prosecutorial discretion being a necessary but very powerful function. That it proceeds in secret is problematic but understandable. A public process would result in just what we see now that, unusually, all the evidence the panel considered has been released. A grand jury is not a trial, but it is being judged by many as though it were. In a grand jury, there is no adversarial cross-examination of witnesses. The intent of the process, that the jury determine whether a trial would serve justice, was probably accomplished. There was too much conflicting testimony and evidence and I suspect that a Wilson trial would have been no more satisfying than was the OJ Simpson trial, so I think the jurors did their job properly.

    I think it’s pretty much settled policy that when a police officer decides to employ deadly force with a pistol, that it be directed at the center of mass and not at wounding. Pistols are notoriously inaccurate, particularly when adrenaline is flowing freely.

    Speaking of evidence, Wilson and his brethren mishandled the gun issue. Wilson himself bagged the weapon and it is unknown whether Brown’s fingerprints were ever on it, but if they were, it would have been to Wilson’s advantage to preserve them.

    The best outcome of the Ferguson case, in my opinion, would be a federal law prescribing the wearing of individual video cams by police, along with a strict and enforceable protocol for their activation and use. Surely we can count on our U.S. Congress to come together on such an important matter and allow the Obama administration to count it as an important accomplishment. 🙄


    • Jim,

      I just can’t agree with you about this grand jury decision or with your framing of the grand jury process in general.

      We all might want to historically or philosophically agree that the grand jury was “intended to subject prosecutorial discretion to the judgement of a panel of ordinary citizens as a check on corruption,” and so forth. Problem is that’s not how it works in practice. The grand jury, as Justice Scalia notes in a fascinating case (United States v. Williams, 1992), is an “accusatory” not an “adjudicatory” body. That makes it, then, really a tool of the prosecutor. And in this case, the Wilson grand jury was essentially used by the prosecutor as an adjudicatory body, even though there was no judge present and no judicial authority had control of the proceedings, only the prosecutor himself. McCulloch did not want to accuse Wilson of a crime so he dumped all the evidence in the grand jury’s laps, along with some initially bogus instructions on the law from the lips of his assistants, knowing what the outcome would be.

      McCulloch, in my view, abused the grand jury process by what he did. If he didn’t believe Wilson was guilty of any crime, he should have had the courage to say so himself, without manipulating a grand jury to get the result he obviously wanted from the start, a result that now serves, for millions upon millions of people, as a “not guilty” verdict on Wilson’s actions.



      • I agree that the grand jury was used by McCulloch as a prosecutorial tool, although I would substitute the word function for tool. As I understand your concerns, the process begs the question as to whether grand juries are even justified, but I submit that it’s clearly impractical, even unjust, to try every person accused of a crime. So if you don’t use a grand jury to sort out what cases to try, then how else would you do it?

        You say that McCulloch, if he thought it to be the case, ought to have declared Wilson innocent himself “without manipulating a grand jury” to get the result he desired, but wouldn’t that have been less democratic (small d) than presenting the raw evidence to the jury, and to the public as well? I think so. Unsatisfying as the conclusion is, I am convinced that the case lacks sufficient evidence for a trial. Also, given the emotions and violence inspired by the case I think there would have been a good possibility of jury nullification had it gone to trial.

        The analogy that occurs to me is like a situation that often occurs in today’s NFL. If there isn’t clear and convincing evidence in the replay to overturn the ruling on the field, then the ruling stands.


  8. ansonburlingame

     /  November 27, 2014

    Good response in my view, Jim. But we need to consider a longer, a broader view of the justice system in terms of fairness, particularly those accused or investigated (accosted?) by cops.

    We all have heard that the most dangerous situation for a cop is a routine traffic stop. That is probably because the vast majority of interactions between citizens and cops is traffic violations. There are 10’s of thousands of them I suppose or more each year.

    Body cams is a good idea. Now pay for them for every cop on a beat or in a car and be sure such cameras in no way interfer with a cops ability to ….. Making a body cam “slug proof from a fist” might be a challenge as well. They also need audio to show what the cop might have been called, or said first, when things heat up. Any cop is trained to be verbal abuse proof. Most are, but …….

    Had two cops been in the car would things have escalated as they did with Brown? Maybe all white cops should have a black cop as a partner???? Again if you double the cops in cars, who pays for it? We do the tax payers. Should we impose a tax hike on Joplin taxpayers to give every cop a body cam and put two cops together anytime they go into the streets?

    Will or should the Ferguson case result in re-examing the whole grand jury process? This case seems to be very rare indeed in that the grand jury proceedings have now been made public. I suspect that is very unusual. Should have it been made public and thus should every grand jury proceeding be so publicized, under law? I don’t know, yet.

    What is the linkage between Ferguson and Immigration issues today. Both involve prosecutorial discretion and money it seems to me. Are those so serious that we must re-examine on a broad basis just how much discretion should be allowed for prosecutors and how unfair it might be for defendants to bear the financial burdern of a GOOD (OJ-like) defense.

    Lots to discuss for sure and trying to retry the Ferguson grand jury again, in public is nuts in my view.



  9. ansonburlingame

     /  November 28, 2014

    I fully realize I am commenting too much on this blog to the distress of liberals. But I am doing so because this case, along with the recent Martin/Zimmerman case cause great concern to me.

    I have now posted another blog, a long one again, entitled MORE ABOUT RECOVERY FOR FERGUSON. Our system of justice is in fact unfair, unequal for reasons stated in that blog. The reason I feel that way is expressed in the closing paragraphs of that blog and I paste herein:

    “We the people pay for prosecution. Why should we the people not pay for all defenses with an equal level of resources, training and experience of lawyers, a full defense investigation, etc.? If it costs the prosecution $5,000 to prosecute, why should the defendant not be afforded an equal amount of resources for his defense?

    Don’t even think about asking me how to pay for such a system. Just consider if such a system would be fair and equal, after an arrest is made?

    Said another way, high priced defense lawyers make our system very unfair for people that cannot afford high priced defense lawyers. We should debate how to fix that inherent unfairness in our system of justice, in my view”



    • We the people pay for prosecution. Why should we the people not pay for all defenses with an equal level of resources, training and experience of lawyers, a full defense investigation, etc.? If it costs the prosecution $5,000 to prosecute, why should the defendant not be afforded an equal amount of resources for his defense?

      You surprise me. Not all lawyers are equal and their hiring is based on supply and demand, with the demand depending on the track record of any given lawyer, so I think this is a good analogy with the American health care system. That is also based on money and holds the long-term welfare of the client (patient) ransom for money. Note that this also includes so-called “not-for-profits” because those are just as avid in the pursuit of lucre, but with the aim of increasing salaries of staff and administrators and the curb-appeal of the physical plant.

      I would like to see a system like you describe, but the ABA would be aghast and Congress is chock-full of lawyers, including the Democrat flavor. The proverbial snowball in hell would have a better chance. But thanks for a good chuckle, anyway, Anson.


    • Anson,

      I have read the blog you posted and I must say I, too, am surprised at your suggestion, “why should the defendant not be afforded an equal amount of resources for his defense?” That’s very liberal of you, to be sure. But it runs right into your notions about the government being too big and too expensive. Public defenders in this country are woefully (and tragically in many cases) underfunded because people on your side of politics don’t even think government should perform such services as seeing to it that people have proper representation. And as you point out, the people who suffer are people without means, which in this country often means people of color.

      You also wrote something I find interesting from the keyboard of a conservative writer:

      Simply because of my socio-economic status and color of my skin, I KNOW the system offers me all sorts of protection, after being arrested. Underprivileged people have no such understanding. They simply KNOW (feel?) the system is rigged against them. And because of both socio-economic status and skin color it is so rigged, unintentionally in my view.

      That seems to me to be a change in your point of view, in terms of some of our earlier discussions on this subject. I hope it is because you are exactly right: in important ways the system is “rigged” against underpriviledged people, again, especially people of color.

      Where I will differ with you is in intentionality. I don’t agree that the lopsided system we see just happens to be that way. It was designed by privileged white people, for privileged white people, and is still largely controlled by privileged white people. What would make you think that, therefore, its discrimination is “unintentional”?



  10. ansonburlingame

     /  November 29, 2014

    It is not in any way intended as a chuckle. It is raised for a topic of discussion.

    Equal justice is a constitutional mandate in the 14th Amendment but HC is not, yet, a constitutional mandate. If however the constitution was changed to mandate equality in HC a lot of my arguments against current efforts would go away. It would simply become a matter of how to pay for either system, equality of defense against prosecution and equality of HC for all.

    Of course I am not suggesting that every defendant receive an OJ-like defense. In that case the prosecution was out gunned it seems. Is that fair? And Brown could have at least envisioned rotting in a cell for a long time when if I had stolen a box of cigars I would be out, on bond at least and with a good lawyer calling for dismissal of charges simply because of resources I and my family could bring to bear.

    Every government in the world is suppose to provide justice. It is the fundamental requirement, along with defense of any government. HC has never, until socialism came to the fore in recent decades, been considered a role for government. I’m not even sure if governments liscense Doctors (is that simply a function of the AMA only?)

    If you could only have one, HC or justice, which one would you pick?

    And of course the impact on lawyers would just go right through the roof which would be good in my view. Let them all practice civil law for starters, expect for those that chose either prosecution r defense. Hell let them move from one to the other, see both sides of the situation during a professional career and pay both sides equally. But even in that case, if a rich man sues a poor man in a civil suit is it fair for the rich man to overwhelm any defense from a poor man with resources alone.

    Does such thinging deserve some moments of thought at least. Yes, in my vew but also I realize it is radical thinking, to really improve our system of justice. Is it possible that someone called a racist Tea Partier can have liberal ideas? You bet they can if they think.



    • Anson, your new flexibility of mind impresses me, and the notion of regulating the lawyer business is growing on me. It occurs to me that if the founders were to have written the Constitution and the Declaration of Independence in the modern era rather than in the 18th century, the phrase . . . life, liberty and the pursuit of happiness might well have included basic healthcare. The term, life, I take to include the notion of national defense, so it’s not much of a stretch to imagine such differences. Similarly, the 2nd Amendment would likely have been different because single-shot muskets are not the same as AR-15’s and 95% of jobs are no longer in agriculture. Thus, I would support some amendments to the venerable document in these regards.

      If you decide to write to our own Billy Long about getting the lawyer business reformed, I hope you’ll let us all know his reaction. 🙂


  11. ansonburlingame

     /  December 1, 2014

    Jim and Duane,

    Since childhood I learned about blind justice AND equality of justice for all Americans. I can’t think of a more fundamental concept for American ideals. No show trials, no smoke and mirrors, supposedly, just simple justice in terms of guild or innocence as charged by we the people. If the full power of government is brought to bear against a defendant of any means or skin color, there should be an equal and powerful defense of any defendant.

    Money prevents that from happening in many cases. Thus why not equality of resources devoted to both prosecution and defense? That is the kind of equality embedded in America, at least in my view of the constitution.

    Let’s not get distracted with injecting other ideas of equality, like HC, which is not embedded in the constitution unless you refer to the preable of same, general welfare. We need it and thus must pay for it type reaction to various needs not addressed in the constitution is progressivism in the extreme. If we truly need it then change the constitution to update the government’s responsiblity to address the need.

    We “need” better gun control in a modern society therefore ……… We “need” equality in HC in a modern society therefore ……..

    I inject such an idea, equality of resources for the defense as a new idea to coosider, good or bad. How to achieve such a goal is a second point, not yet ready to be debated. Let’s first test the premise to see if good or bad. To me the presmise seems sound, at first blush perhaps.



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