Prisons

Oakland BART Officer Who Shot Pinned, Unarmed Man Resigns

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The San Francisco Chronicle reports. This gets Johannes Mehserle off the hook for having to actually cooperate in internal police investigations of his murder of Oscar Grant. A great detail:

Alameda County District Attorney Tom Orloff said he plans to move quickly toward a decision on possible charges. Orloff met Wednesday with Oakland Mayor Ron Dellums' chief of staff, several elected officials and other community leaders who arrived at his Oakland office demanding information about the probe.

"These things normally take weeks rather than days, but I am trying to expedite this and get it resolved as quickly as we can," Orloff said.

Any people in public prosecutors offices out there? Does it really take weeks to even decide to press charges in your average case of a multiple-eyewitness and on-video shooting? Or could it be officers are treated with kid gloves an average citizen shooter would not be.

Note: An earlier version of this post made the presumption, which I now believe not to be accurate, that the "statewide fund for police officers" that Mehserle's lawyer says in the story will pay for his defense–despite no longer being an officer–was paid for by taxpayers. While I have not been able to verify this for sure this Friday evening, it could well be this private defense fund. If I learn that taxpayers are indeed on the hook, I'll update.

Earlier blogging on this, each one with embeds or links to the news report with the citizen-shot video of the leadup to the shooting and shooting, from Michael Moynihan and me.

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  1. Someone please compile two lists for this layman, List #1 to show the benefits that accrue to the officer as a result of his resignation, such as apparently avoiding IA investigation, and List #2 showing any penalties he incurs by having resigned – eg, are there any protections he forfeits thereby?

  2. This gets Johannes Mehserle off the hook for having to actually cooperate in internal police investigations of his murder of Oscar Grant

    You’re presuming that the Internal affairs bureau would have any power to do anything other than get Mehserle fired, which they wouldn’t.

    You’re also presuming a murder, even though you have no idea what his mens rea is.

    Does the presumption of innocence only extend to non-cop defendants?

  3. Does the presumption of innocence only extend to non-cop defendants?

    This isn’t a courtroom, Wallace, and we aren’t the jury. So there is no presumption of innocence in this case or any other.

  4. Does the presumption of innocence only extend to non-cop defendants?

    No, it extends to people who aren’t captured on video while shooting unarmed folks in the back.

  5. I take back that comment, Mr. Wallace, as I just noticed you said “murder,” and were probably discussing the charge and not the fact that he killed someone. I’ll try to be less quick to type in the future.

  6. Wallace, I do know what mens rea means. I also know what “depraved heart” means. If that standard is available in CA, he can be found guilty of murder.

    Also, the presumption of innocence is a legal burden I only have to honor if I’m serving as a juror on his trial. Since I don’t have the power to imprison anyone, I’m under no such burden and am free to draw conclusions or not based on the evidence I see.

  7. Porac LDF in California is normally the legal defense fund afforded officers and it covers them during the course of their employment and after, since it covers actions *while* employed. They also defend people who are fired, so by design, that is after employment. LDF is normally paid for by the police association (union) for that agency, which normally obtain their money from union dues, not taxpayers (at least not directly.) An agency/city can choose to indemnify and pay for defense of any officer if it chooses, but that’s not likely in this case, especially considering the officer has resigned.

  8. It’s amazing how this prosecutor is so slow to make up his mind on pressing charges. The prosecutor in the Ryan Frederick case was so much quicker and more decisive. Come on Orloff, get on the ball!

  9. More riots! evidently its the only thing that works.

  10. I understand treating public cases especially carefully given that screwing up can have an effect beyond just the one case, but I don’t understand why they couldn’t decide to at least bring charges.

    And I’m not a prosecutor, but I don’t think it’s entirely unheard of to bring lesser charges and then add to them should testimony bring corroborating evidence to light.

    …although I’d think a video would be worth a thousand corroborating stories.

    On a related note, I find it amazing that Madoff still isn’t in a cell. Yeah, yeah, innocent until proven guilty, but… Don’t corroborated confessions have something to do with this?

    Same thing with the video of this murder. It’s one thing to drag your feet charging the guy with something, but looking ahead, how do you let a guy who everbody’s seen do something like this on tape just walk the streets?

  11. I can’t believe this shit. In protest, I’m going to eat five gallons of chocolate ice cream and then fart on every chair in every police station within 50 miles.

  12. While I commend H&R for keeping this story alive in the blog, the resignation is quite old news, I believe it happened on Monday. My quick glance at my digg.com posts over the last week since this has been in the news, I see I was bitching about his resignation since about 4 PM my time Monday.

    Earlier today Tony Harris on CNN gave an update after the small 30 second spot highlighting the riots that have sparked in the aftermath claiming that at this point the officers lawyer and the IA office are having trouble locating him. His lawyer claims there were credible threats on his life forcing him to go into hiding. Which explains why 9 days after the shooting no one from the BART IA office, the DA, or any other law enforcement agency even has the slightest idea what his explanation or defense for the shooting is. Apparently even his lawyer is having difficulty answering any questions about it.

    Regarding SOP for civilian ‘accidental shootings’ earlier this week a 12 year old allegedly shot a 2 year old while playing with a small caliber rifle. The differences between the 2 cases is obvious, however it still stands to point out that the 12 year old in question was IMMEDIATELY taken into custody, and remains in custody pending charges.

    http://abclocal.go.com/kgo/story?section=news/local/peninsula&id=6594946

    Since there are so many accidental shootings every week, lets use them for example.

    Here we have a hunter who accidentally shot another hunter on Jan 4, the victim is alive. However less then 24 hours after the shooting the news had already reported the charges that the shooter will face, reckless endangerment and assault. All without any video evidence to help sort out the facts:

    http://www.buffalonews.com/nationalworld/state/story/540282.html

    Here, a man throwing a gun on his bed causing it to discharge and penetrate his wall and strike his neighbor on Jan 4, he has already been arrested and charged:

    http://www.portlandtribune.com/news/story.php?story_id=123109583121639000

    And lets not forget how quickly Plaxico Burress was arrested and charged for shooting himself.

    9 days later this officer walks, nobody can even pinpoint his whereabouts and a time line for the decision to even FILE charges has not even been set.

    The fact that there has not been MORE pressure on the DA from pretty much everyone is completely baffling.

    Regarding the presumption of innocence:

    Everyone is presumed innocent until found guilty, most prisoners in local jails are innocent suspects awaiting trail. Thats kinda how things work in the legal system, you are arrested, charged, go to jail, make bail or not, go to court, get convicted or acquitted. To ask for an arrest and charges to be filed is not saying he is guilty, its just saying that he COULD be.

    Or are you suggesting that the legal process be somehow altered for Law Enforcement Personnel?

  13. I wonder if they’ll charge him with voluntary or involuntary manslaughter. And if the former, will he plead down to the latter? And what the sentence will be.

    I don’t think they will go murder unless its for political reasons. I don’t know Cali law but I presume a certain amount of premeditation is required for a murder charge.

    I’d guess something happened (something as stupid as getting his finger pinched in the cuffs, for example, which would be no big deal but would HURT) in that takedown that caused him to “see red” and that explosion led to the shooting.

    And yes, the level of douchebag one has to be for that to lead you to shoot someone is off the damn scale. The dude deserves his cell.

  14. how do you let a guy who everbody’s seen do something like this on tape just walk the streets?

    I share the shock and understand the outrage, but perhaps he poses less of a threat now than he ever did, and less of a threat than many others walking the streets. At this point on his life, I bet he’ll be real careful about anything and everything. Plus, he’s no longer carrying a gun, right? Right? At least I hope not.

  15. Disclaimer: That was avowedly speculation and uncontextualized by comparable cases.

  16. Premeditation does not require any amount of time. If Cory Maye and Ryan Frederick got charged with murder this guy sure as hell should.

  17. On problem with not charging him and setting bail: isn’t there some chance he is a flight risk?

  18. So many comments in the short time it took for me to type out my last post…

    Ken, your right on the ball regarding at least bringing preliminary charges. This happens all the time, probably to every poster in this forum. How many times have you received a traffic ticket and then gone to court only to have the DA offer you a deal, yea like all the time. Short of double jeopardy the law affords most DAs quite a bit of latitude when it comes to charges.

    Hell, even if, god forbid, the DA would decide not to charge him at all there is certainly thousands of legal precedent for the man to be arrested and spend time in custody until the charges have been dropped. I’m certain we all can recall a case like that being reported on our evening local news across the country. From a PR and public safety standpoint the fact that this has not occurred just makes me wonder.

    There is enough probable cause to at least arrest and charge with reckless manslaughter, hell, charge him with unlawful discharge of a firearm, if the bullet was truly fired by accident that is exactly what that law covers, accidental discharge of a firearm in pretty much every state is illegal.

  19. IANAL, but I thought [voluntary] manslaughter only applied when death resulted from a reaction without any sort of thought. For instance, if a guy stomps on one’s foot and then one reactively swings in the direction of his head and hits him in the larynx, killing him, that would be manslaughter.

    But it’s hard to defend pulling out a gun and shooting the nearest person as a reaction to having one’s finger pinched. If that’s the case, this guy should not be walking around in our society anyway.

  20. Jammer,

    “I don’t think they will go murder unless its for political reasons. I don’t know Cali law but I presume a certain amount of premeditation is required for a murder charge.”

    Nope, actually California is the state most likely to pursue murder charges in the event of an accidental shooting. Usually a DA will push murder 2 in the case of an accidental shooting. Quoting Wikipedia:

    “In many jurisdictions, such as in California, if the unintentional conduct amounts to such gross negligence as to amount to a willful or depraved indifference to human life, the mens rea may be considered to constitute malice. In such a case, the charged offense may be murder, often characterized as second degree murder.”

    You only need to look no further then both Christian Brando and Phil Spector for similar ‘accidental shootings’ that lead to murder charges. A quick google search reveals plenty of other citizens who have been charged in California for murder after an accidental shooting, in several cases murder was pursued against the owner of a firearm used by a juvenile to accidentally shoot another child.

  21. man the fascists are everywhere even sanfrancisco. this doode needs to go down.

  22. its about time they killed that hippie

  23. only “cosmotarians” would oppose the execution of this hooligan. them and there progresive enablurs

  24. meta if you can’t even spell progressive don’t try talking about it man. same with enabulurz.

  25. joe p boyle and mng and jennifer flowers

  26. spelling is for cosmotarians. so is grammar and capitalization. us ?ber-american Palintr?ppen spell from the gut11!1

  27. i bet you didnt think we should round up them ayrabs, neither!

    cosmotrarian!

  28. are you trying to say arabs? they are like totally cool people. haven’t you had hummas and vegetarian lamb? you are just a fascist freak. go eat your jack boots.

  29. let 1K flowers blum’s whey down upon the Swanee river he don’t know nuthin’ he jess keep rollin paper training wheels and deals fair grounds for impeach melba toast of the town house wins 1010abulation currencies are down wid dat, man Friday the 13th tribe

    Makes about as much sense.

  30. faker doode, that was totally uncool.

  31. u r a democrat shill, nobody u no. i bet u watch MSDNC

  32. metatool it is not cool to call people ugly names. you need some professional help like from a community clinic or something doode.

  33. Another thread destroyed by adolescents using Hit and Run as their personal sandbox. Swell.

  34. yea man. that tool really spoils a good scene.

  35. More riots! evidently its the only thing that works.

    If by “works”, you mean “punishes people who aren’t the perp”, then yeah, riots work great.

    -jcr

  36. JCR – I take it you are a total pacifist, then? Because war inevitably “punishes people who are not the ‘perp'”.

  37. google

    “only ones” site:waronguns.blogspot.com

    and you will get an idea of how these things work.

  38. If we could go back to the good old common law, allowing private prosecutions and grand-jury presentments without waiting for the prosecutor to make up his mind, it would be great.

    The burden of proving the defendant’s guilt would still be as difficult as before, but a single official wouldn’t be able to block an indictment.

  39. Does the presumption of innocence only extend to non-cop defendants?

    Almost always, yes.

  40. Until he at least denies premeditation and intention there is PC for first degree murder.

    After he denies those things it is still felony murder.

    That is what the law is. What the prosecutor will do, is, of course, another thing altogether.

  41. I guess I can make due with the Director’s Cut of Monty Python & the Holy Grail instead of a new post here.

  42. JCR – I take it you are a total pacifist, then? Because war inevitably “punishes people who are not the ‘perp'”.

    Or an adherent of traditional just war theory, which holds that wars conducted with the express purpose of punishing people who are not the perp are immoral, but that wars conducted with the purpose of punishing combatants (i.e., perps) are not.

  43. should have been:

    -After he denies those things (and assuming his denial is credible and not contradicted by other evidence) it is still felony murder.–

  44. According to the famous “Docrtine of the Double Effect” in ethics an act which aims at a morally good end but which has the double effect of also causing a morally bad effect can be morally justified when the morally bad effect is foreseen but unintended, but not when the morally bad effect is (even in part) intended (the difference between a terror bomber that intends to kill civilians and military folks in one target and a strategic bomber who intends only military deaths but foresees the inevitability of civilian deaths).

    So according to this idea the riots would be condemned to the extent that the intention of them is in part to loot and pillage, while war properly conducted but having the inevitable result of punishing more than the perps would be justified.

    Whatever you can say about rioters, they rarely take the great care to minimize third party harm that would allow their actions to be justified.

  45. Go have your riot in DC and leave us in VA alone, okay?

    I will not have my Starbucks experience interrupted by your silly shenanigans.

  46. The killer ‘resigns’ insuring there will be no examination of bus cop dept procedures and training. His colleagues will state ‘they were in fear for their lives’ during the incident and the execution was necessary. The DA will return only ‘involuntary manslaughter’ or equal charges and the other attending cops will be charged with nothing.

    In TX, if I murdered a person, and if others were in attendance with me, we’d ALL be charged under the ‘law of parties’…I’d like to see such action in this case. Of course since these are ‘Only Ones’ who’ve murdered a citizen, a different rule book applies.

    Screw the bus cops, charge ’em all.

  47. Devil’s advocate: The SFGate article did mention the possibility that the officer mistakenly grabbed his firearm when he meant to use a taser. Supposedly BART has only recently begun using tasers, and officers had been ordered not to wear them near their guns, so as to avoid that sort of confusion.

    Of course, if this were a civilian suspect the police and prosecutor would probably fall over laughing at such a theory.

  48. Is Reason covering the protest this afternoon by the White House?

    Should be plenty of those “shove the Jews into the sea” advocates there.

  49. You’re also presuming a murder, even though you have no idea what his mens rea is.

    IANAL, also IANAI (idiot). A restraioned man, face down, was deliberately shot in the back.

    As they say on the sports shows, you make the call.

  50. Premeditation does not require any amount of time. If Cory Maye and Ryan Frederick got charged with murder this guy sure as hell should.

    C’mon. You know the de facto rules.

    If a cop is shot, the shooter automatically gets charged with first degree murder before even a cursory investigation occurs. After an investigation does occur (all cops get to huddle and coordinate perjury during the investigation), the decision to prosecute first degree murder stands while ten cops swear to the exact same story about what happened.

    If a citizen is shot by a cop, charges will only be brought when there is incontrovertible evidence that cop wrongdoing was involved. Even then, a delay has to happen so the cops “brothers in blue” can get together and concoct a story that appears to exonerate or at least justify the LEO’s actions.

    IIRC, nobody was charged with murder for the death of Kathryn Johnston. Make no mistake about it, she was murdered by cops.

  51. When I was a public school teacher, I was held to a MUCH higher standard of behavior than the teens and young adults over whom I had authority: if one of them told me to do something obscene, he’d merely get detention or possibly a suspension, whereas if I said something equally obscene back I’d be fired. The assumption was simple and obvious: I had a level of government-granted authority and power, therefore, I should be held to a higher standard than those over whom I had this power. Yet the actual power I had over those students was minimal: even if I wanted to abuse it, the worst I could’ve done was given a lower-than-earned grade, or possibly postponed the kid’s graduation by a semester. No power of life and death. No authority to take their freedom away for months or years at a time.

    There’s no way any non-cop in America would still be walking free today, over a week after being caught on video in front of several eyewitnesses shooting an unarmed, subdued man in the back. Since these cops have authority, they should be held to a HIGHER standard than ordinary citizens, not given a “Commit one murder free” card upon receiving a badge.

  52. Here at Lafayette Square, the space is about 10% full of people with bad chants. “Free free Palestine Occupation is a Crime”.

    Not quite worth the METRO ride.

    Some frungy chick just tried to give me literature. Shooed her away before she could ask for a donation.

  53. “Guy Montag | January 10, 2009, 12:57pm | #
    Here at Lafayette Square, the space is about 10% full of people with bad chants. “Free free Palestine Occupation is a Crime”.

    What the hell does that have to do with the subject of the thread?

  54. I’d argue this guy is even more dangerous now. As an ex-cop there is a 100% probability he owns personal firearms. Hell, there’s nothing stopping him from buying more guns; he hasn’t been convicted of anything.

    So, people have threatened his life, his career is over, he’s unemployed and nobody seems to know where he is. Wonder if any public “servants” would get fired if he loaded for bear and went and shot up a shopping mall.

    Nah, probably not.

  55. What the hell does that have to do with the subject of the thread?

    It’s an analogue (and, interactively, you get to choose who stands for whom).

  56. What the hell does that have to do with the subject of the thread?

    Since this is the unofficial weekend open thread, everything.

  57. Here’s why I’m surprised no charges have been brought:

    It’s beyond dispute that the cop shot the guy. To defeat the presumption that he committed a crime, he has to offer a justification. [“I’m a cop and he’s black and I thought his belt was secretly a boa constrictor he was about to draw.”

    If the guy refuses to offer a statement justifying his action, it’s inappropriate for the DA to presume such justification. He should be immediately arrested.

    This is one of the few situations where the refusal to submit to questioning does, in fact, count towards establishing guilt – where the suspect needs to offer justification to defeat the potential charge, and won’t.

  58. I tired of the smelly noisey protestors about the time a group of them decided to line up in front of the park bench I was occupying, kneel, bow and babble some sort of religos stuff.

    Have since relocated to the safety and serenity of Virginia, sipping a beer and waiting for the Titans game to begin.

  59. Since Guy wants this to be a football thread too, I will offer the following contribution:

    Bret Favre sucks.

    That is all.

  60. OC: Looks to me like the cop is guilty as hell. That is my default anyway, but have been known to take the other side or a more nuanced approach, especially when Radley goes way over the top, IMHO. Since this is not a Radley story it was written a bit more calmly it seems.

  61. Fluffy,

    I second your football comment.

  62. What the hell does that have to do with the subject of the thread?

    I could be wrong, but I think that Guy is attempting to establish his bona fides as a crusty old whiner.

  63. Was that an endorsement from one of the premere whiners on H&R lmnop?

  64. One man’s whiner is another man’s freedom fighter.

  65. I thought Guy had Elemenope blocked? Curious.

    Oh, and I agree Brett Favre sucks. Wait, till you meet his family from the Kiln. Aaaarrrgggghhhh!!!

  66. Was that an endorsement from one of the premiere whiners on H&R lmnop?

    No, what I did was called “snark”. Different from whining. I’m sure you, being a bright fellow, can figure out the difference.

    You’re usually amusing and sometimes insightful, and if it weren’t for the fact that you have a tendency to stick your digital fingers in your ears (and eyes) and scream “LA LA LA!” at the top of your lungs every time someone criticized your position or disagreed with you, I’d have a great deal more respect for you.

  67. digital fingers

  68. Hmmmmmm . . . Guy and Elemenope making up here would be the equivalent to the Crips and the Bloods calling a truce. Momentous occasion possible . . .

  69. digital fingers

    Yeah, intentional but corny, I know.

  70. Multiple responses follow:

    One man’s whiner is another man’s freedom fighter.

    Well, there is that. lmnop does market himself as some sort of champion of the ‘poor’ on regular occasion.

    thought Guy had Elemenope blocked? Curious.

    I did on my old computer. Did not bother messing with filters on this new one. Going back to my old method of actively scrolling past and ignoring stuff that is not worth the bother.

    No, what I did was called “snark”. Different from whining. I’m sure you, being a bright fellow, can figure out the difference.

    Apparently your jerking knee prevented you from noticing that it was a general observation, not a comment on your comment.

  71. lmnop,

    “We are the Champions” was playing in the bar as I read your longer post. Perhaps it is a sign from gaia.

  72. lmnop does market himself as some sort of champion of the ‘poor’ on regular occasion.

    Er, huh?

    Apparently your jerking knee prevented you from noticing that it was a general observation, not a comment on your comment.

    I know. What I’m saying is you usually mistake my snark for whine.

    “We are the Champions” was playing in the bar as I read your longer post. Perhaps it is a sign from gaia.

    Fucking ROFL!

  73. Wasn’t Guy leaving the country so we wouldn’t have to hear from be able to converse with him?

    Or was that some other sub-normal H&R regular?

  74. J sub D,

    Apparently Guy was broadcasting from an “undisclosed location”. My guess at the time was that he was hangin’ with Cheney and shooting people in the face. Just a guess though.

  75. J sub D,

    I njust have not left yet and it is not happening as swiftly as I would like.

    Don’t worry, I shall have an intertubes pipe there too.

  76. That would be a cool show. “Hangin’ with Cheney” and every episode the neighbor next door could be shot in the face. But only after he has shown Cheney the evil of his ways for that episode. Also, we should never see the neighbors face. Ever. That would be wicked!

  77. NS,

    What would I need Cheney for if they were on my lawn? If I had a lawn . . .

  78. Guy,

    In answer to your question . . . yes.

  79. NS,

    LOL, can you expand on that?

  80. Who would be Cheney’s wacky sidekick, NS?

  81. Well Guy, it’s like this . . . exactly.

  82. BDB,

    Clearly it would be Michael Moore.

  83. Gotta go people. Later.

  84. You guys are too kind to call this a murder. I stand by my initial reaction that this was the public execution of an innocent man (or atleast one who was not proven guilty of anything).

    I would have no qualms with a public execution of the perpetrator, if proven guilty.

  85. Guy Montag | January 10, 2009, 3:39pm | #
    J sub D,

    I njust have not left yet and it is not happening as swiftly as I would like.

    Don’t worry, I shall have an intertubes pipe there too.

    I seem to recall that Mr. Montag was going to be doing something for Uncle Sam in some sort of dangerous place. I obviously don’t want any harm to befall any human being (or even Guy Montag) but if some insurgents were to damage a fiber-optic cable, well, it wouldn’t be the end of the world.

  86. tired dog | January 10, 2009, 10:38am | #
    The killer ‘resigns’ insuring there will be no examination of bus cop dept procedures and training. His colleagues will state ‘they were in fear for their lives’ during the incident and the execution was necessary.

    Well, they should have been in fear of their lives. They’re witnesses to a murder.

  87. Mafia hit men don’t fucking resign! Privatize the police!

  88. Well, they should have been in fear of their lives. They’re witnessesaccomplices to a murder.

    They witnessed a man shoot someone in the back, and did not act to restrain–much less arrest–him, as would be dictated by their duty as police officers, if not human beings.

  89. jay i call it murder. fascist corporation murder. you know the corporations own our government and the pigs were just doing their corporate duty. just read the online paper at my link and you will see.

  90. “What the hell does that have to do with the subject of the thread?”

    There’s a new thread sheriff in town…

  91. Does anybody not think the “nobody you know” guy is SIV? The same inability to go past two sentences and the same Georgian theocratic mindset. C’mon SIV, just present yourself as a defender of cockfighting and get over it.

  92. They witnessed a man shoot someone in the back, and did not act to restrain–much less arrest–him, as would be dictated by their duty as police officers, if not human beings.

    Right on brother Elemenope

    I can’t believe I missed this story all week

  93. mng, cockfighting is the greatest american sport ever.

    cute little puppies can eat shit or die, but a clump of cells in a dish should have full human rights! unless u r a cosmotarian or progressive enabler.

  94. oh yeah i love dog fighting, bear baiting, and kitten stomping, too. property rights!

  95. and i really wish i could drive a big dirty coal powered hummer hooked up to my neighbors lungs and blast the exhaust right into them just to show the little greenie bastards! yeah! haha! so what if i get cancer too?

  96. Even Wyatt Earp was brought to trial over the shootings at the OK Corral.

    Why hasn’t this bastard DA in Oakland moved to indict?

  97. Does the presumption of innocence only extend to non-cop defendants?

    Actually, this cop hasn’t been charged with anything yet, meaning that the state is extending to him a presumption of innocence and preferential treatment that non-cop defendants could only dream of. For us non-jurists, the captured-on-video thing does kinda hurt his presumption-of-innocence thing, by the way.

    If a black guy “accidentally” shot a cop in the back, he would already be 2/3rds of the way to Death Row right now.

    Bets that when (if) the cop finally gets indicted, his bail is low enough for him to afford (contrary to the average citizen-killer), and that in the off-chance he’s actually convicted, he won’t get more that 10 years?

    On that note, bets that if he is found innocent or gets an insubstantial sentence, riots will break out across the country?

  98. On that note, bets that if he is found innocent or gets an insubstantial sentence, riots will break out across the country?

    Once (if?!) he is indicted, I expect violence in Oakland to subside. Then, if he gets acquitted/slap on the wrist, violence will again break out in Oakland. Then, if there is a controversial incident involving the cops during the riots, there is potential for the thing to spiral outwards.

    By way of comparison, there was no serious unrest outside of L.A. in the wake of the Rodney King officers’ trial, even though L.A. itself was consumed by violence.

  99. Just in case, the newest story in the current Google News cluster is “Brown appoints prosecutor to oversee BART probe”.

    What I find priceless about the “overseer” is that he sounds so timid about interfering, it’s likely he will operate only as a fig leaf for the process.

  100. “you know the corporations own our government and the pigs were just doing their corporate duty.”

    Do you reckon if our congress critters abided by the Constitution (particularly the 10th amendment) it would be profitable for rent seekers to bribe our congress critters for favors?

    Isn’t it ironic that your ilk wants to provide more power to our congress critters, subsequently raising the profitability of rent seekings and making some previously negative NPV bribes, positive?

  101. jay if we had a truly freedom constitution with personal rights and rights to housing and healthcare that would not be an issue.

  102. jay if we give power to the people and take it from the corporations then the “rent seeking” you are saying will go away.

  103. I take it you are a total pacifist, then?

    Nope. There is such a thing as a just war, although all wars are tragic.

    -jcr

  104. Go read a book on game theory with regards to voting theory. You will realize how retarded the following statement is in the context of the federal government of the United States…

    “jay if we give power to the people and take it from the corporations”

  105. “jay if we had a truly freedom constitution with personal rights and rights to housing and healthcare that would not be an issue.”

    Along with the right to “private jets” (freedom of transportation). Body guards (right to life). I could go on all night.

    You must be one of the Michael Moore kool-aid drinkers that thinks healthcare is not rationed under national healthcare. I love you lefties, because you regularly denounce the laws of supply and demand.

  106. Seamus,

    I would go a bit further in just war theory and say that during a war, the most moral course of action (assuming a negotiated peace isn’t feasible) is to kill the top leadership of the opposing forces.

    So, an optimal outcome of the action in Gaza would be to kill the top thugs of Hamas, and proceed down their chain of command until you found someone willing to call off the rockets.

    -jcr

  107. So, an optimal outcome of the action in Gaza would be to kill the top thugs of Hamas, and proceed down their chain of command until you found someone willing to call off the rockets.

    “Now this is all the money Niska gave us in advance. You give it back to him, tell him the job didn’t work out. We’re not thieves — well, we are thieves, but — the point is, we’re not taking what’s his. We’ll stay out
    of his way as best we can from here on in. You’ll explain that’s best for everyone, okay?”

    –Keep the money. Use it to buy a funeral. It doesn’t matter where you go, how far you fly — I will hunt you down and the last thing
    you see will be my blade.

    “Darn.”

    [Kick. Sound of Crow being sucked through jet engine]

    “Now. this is all the money Niska –”

    –Oh I get it! I’m good! Best for everyone, I’m right there with you.

  108. jay your private jets example is another exageration to silence progressive thought.

    nobody should have private jets. they should be used according to need.

  109. they should be used according to need

    Agreed.

  110. are you one of those people who think we should “own” animals too?

  111. thrifty flying cars are only 2 years away. would be quicker if it were not for the corporations keeping them off the market.

  112. Don’t shoot me dead bro?

  113. My prediction: Mehserle is found dead by his own hand.

  114. My prediction: Mehserle will be found dead in circumstances that look like suicide. Like Dr. David Kelly or the anthrax guy.

  115. As long as he stays out of the Castle Anthrax, that is fine Dave.

  116. Why hasn’t this bastard DA in Oakland moved to indict?

    This, I believe, is what we refer to as a “rhetorical” question.

  117. jokes the military contractor . . .

  118. “jay your private jets example is another exageration to silence ‘progressive’ thought.”

    ‘progressive’ – adj. of or relating to the Progressive party.

    not to be confused with

    ‘progressive’ – adj. moving forward, advancing

    The two are not synonomous.

  119. “nobody should have private jets. they should be used according to need.”

    Good to know I’m dealing with a bat-shit insane Marxist. You have your head so far up your ass you’ll never see the light of day.

    “thrifty flying cars are only 2 years away. would be quicker if it were not for the corporations keeping them off the market.

    I thought we were trying to reduce our carbon foot print, not increase it?

  120. lmnop,

    there was no serious unrest outside of L.A. in the wake of the Rodney King officers’ trial, even though L.A. itself was consumed by violence.

    Not entirely true, depending on your definition of serious. There was some rioting in Atlanta too. Enough that I had a friend flying into town that day and I picked him up at Hartsfield, instead of him taking MARTA.

    It turned out that MARTA was perfectly safe, but there was some worry about it.

  121. Good to know I’m dealing with a bat-shit insane Marxist.

    Nah, man, you just got trolled.

    Not entirely true, depending on your definition of serious. There was some rioting in Atlanta too. Enough that I had a friend flying into town that day and I picked him up at Hartsfield, instead of him taking MARTA.

    It turned out that MARTA was perfectly safe, but there was some worry about it.

    Huh. I hadn’t heard about that. Thanks for the info.

  122. Video of CNN coverage of Atlanta 1992 riot

    A quick search didn’t find much.Apparently 300 people were arrested.I was in the ATL area then and I remember two things.A white motorist was dragged from his car and beaten into a coma.IIRC he “recovered” somewhat but suffered severe brain damage.There was live TV coverage of Korean grocers on the roof of their store as it was being looted.They were rescued by police helicopter.
    The Atlanta “copycat” riot was quite unexpected at the time.

    There was apparently riots in other cities as well(including Las Vegas and Toronto!) but I have no specific knowledge of them.

  123. In related news, there is still intermittent rioting in Greece. Did they ever sort out exactly what happened in that case (a cop shooting some teenager)?

  124. Will these flying cars also run on water just like that car in the 70’s that supposedly was “covered up” by the evil oil companies?

    *plays X-files music*

  125. How special: Tom Orloff, the DA for the county where this cop should be charged, has already filed charges against some of the rioters, but “said he expects to make a decision in about two weeks on whether to file criminal charges against former BART Officer Johannes Mehserle.”

    So this motherfucker didn’t waste any time filing charges against rioters, but is going to wait until the 23rd of January to even make a decision about whether charges will be filed? What the fuck?:

    Source.

  126. How special: Tom Orloff, the DA for the county where this cop should be charged, has already filed charges against some of the rioters, but “said he expects to make a decision in about two weeks on whether to file criminal charges against former BART Officer Johannes Mehserle.”

    Some are more equal than others. But we all know that.

    Here’s a thought exercise. The same thing happens on a dark street corner in a bad neighborhood. What do the other cops put in their reports? Does a throw down weapon/drugs get dropped on the dead guy?

    On second thought, stupid question, never mind.

    TAO, your link is not working. Error Code: 502 Proxy Error. The host was not found.(11001)

  127. J sub – I don’t know why it is not working for you. When I click on it, it works. Hm.

    Anyway, the other appalling thing about this is what Fluffy talked about eariler: Orloff is ‘pondering’ whether to bring second-degree murder charges (which mean the officer had a “knowing” intent to shoot Grant) or involuntary manslaughter charges (meaning the officer was reckless). The part that is appalling is that Orloff is even considering charging recklessness: he has no evidence that the shooting was anything but intentional!. Right now, because Mehserle refuses to give a statement of any kind, how is it that Orloff is magically injecting “accident” into this? He has no evidence for that.

    Charge Mehserle with 2nd-degree murder and let him convince a jury that this was an accident.

  128. TAO, your link is not working.

    Try this.

    (The “?nclick_check=1” at the tail end of the original URL may have caused some issues.)

  129. On a related note, the “Inside Bay Area” site (which would include the “Oakland Tribune”) apparently has a related special section.

  130. I’m sure someone has had to mention this already, but imagine this tape existed but it was of a civilian shooting a bound police officer. Now imagine how the DA would be acting.

    We need civilian review boards everywhere. For starters.

  131. Pro Tip:
    If your going to engage in some civil disobedience, leave the cocaine at home.

  132. Also, from TAO’s link:
    Wednesday’s demonstration was the first time many Oakland police officers – of whom only half have been on the force for more than two years
    *Half* are under two years?
    Wow. The Iraqi and Afghani National Police Forces have more experience than this.

  133. As a more ‘scientific’ comparison, the median

  134. (The “?nclick_check=1” at the tail end of the original URL may have caused some issues.)

    Yeppers! Thank you, EJM.

  135. I’m sure someone has had to mention this already, but imagine this tape existed but it was of a civilian shooting a bound police officer. Now imagine how the DA would be acting.

    We need civilian review boards everywhere. For starters.

    Grrr!

    Unless they are MPs, fuckin’ cops are goddam civilians, just like you and I. Independent citizen review boards is what you mean. The perceivced cops/civilians dichotomy is a symptom of a very large problem, the disconnect of the public servant and the public.

    Again, Grrr!

  136. the “double standard ” works both way, as the above mentioned rodney king trail shows.

    in this case, the prosecutor (DA) is going to make sure he has way more ducks in order before charging an on-duty cop who shot somebody during an arrest vs. some civilian. that is pretty obvious.

    otoh, as witnessed in the rodney king case, prosecutors have no problem violating the spirit of double jeapardy by prosecuting twice for the same offense (first in state courts, then in federal courts) for the same crime.

    the reasons why this doesn’t (technically) amount to double jeapardy are complex, however, the result is clear.

    in that respect, the double standard works against cops – in that they are far more frequently prosecuted twice (state then federal) for the same offense. this almost never happens with civilians.

    it’s an interesting twist on the law that is rarely discussed.

  137. the prosecutor (DA) is going to make sure he has way more ducks in order before charging an on-duty cop who shot somebody during an arrest vs. some civilian. that is pretty obvious.

    What “ducks”? Right now, the videotape evidence points to murder. The only person who has the power to disabuse us of that notion is Mehserle, and he refuses to cooperate. Therefore, an arrest is in order. Like has been asked, do you think it should (or would) take three weeks if the suspect were not a police officer? Hardly. Three weeks is an abuse of power; so is Orloff agonizing over what to charge.

  138. otoh, as witnessed in the rodney king case, prosecutors have no problem violating the spirit of double jeapardy by prosecuting twice for the same offense (first in state courts, then in federal courts) for the same crime.

    the reasons why this doesn’t (technically) amount to double jeapardy are complex, however, the result is clear.

    in that respect, the double standard works against cops – in that they are far more frequently prosecuted twice (state then federal) for the same offense. this almost never happens with civilians.

    Grrr! I say again, cops are civilians. Grrr!

    See if this scenario rings a bell.

    The ’50s and ’60s.
    The deep south.
    Raially motivated crimes against black citizens.
    DAs don’t or half assed prosecute.
    White juries refuse to convict.
    The feds charge the perpetrators with civil rights violations.

    It does happen with non-LEO citizens. I’ve mixed feelings about this, but lets just admit that the asshole cops who beat the crap outta Rodney King were guilty of aggravated assault and an average 10 year old could see that. This fucking cop worship that so many in our society engage in does nothing for justice but shitloads to justice.

  139. JCR:

    I know that this is ‘way down the comments but I would like to say that on behalf of the “grunts” of the world (an hourable profession if there ever was one) I think your idea is most excellent. If the people who started wars had to go mano a mano (literally, “hand to hand”) with their enemies then this would be a much more peaceful world.

    .. “USAF 71-75” Hobbit

  140. hourable=honorable

    .. sheesh, preview is your friend..

    .. Hobbit

  141. “it does happen with non-LEO citizens.”

    which of course does not dispute what i said. what i said is it happens more frequently with cops than with civilians.

    ” I’ve mixed feelings about this, but lets just admit that the asshole cops who beat the crap outta Rodney King were guilty of aggravated assault and an average 10 year old could see that. This fucking cop worship that so many in our society engage in does nothing for justice but shitloads to justice.”

    which is totally irrelevant.

    the double jeapardy concept doesn’t say “except when the guy is obviously guilty as fuck”

    for example, OJ Simpson was obviously guilty as hell, but it doesn’t matter (i am talking about the ron goldman/nicole murder), that doesn’t make it “ok” for him to be prosecuted a second time for the same murder.

    rule of law (should) matter. this is a process analysis, as constitutional law analysis always should be, not a results analysis.

    a “good result” does not justify bad, and arguably unconstitutional process.

    regardless of whether the rodney king cops were guilty as fuck, they were acquitted in a state trial, then tried again for the same frigging offense.

    there would be no problem with me, if they had decided to try them first (and only) federally. the problem was they got two bites at the apple which violates the double jeapardy principle, although not technically the law (for reasons i can explain, but it’s complicated).

    arguing that double jeapardy is ok cause the rodney king cops are obviously guilty is like arguing it’s ok for cops to plant evidence, if the guy was otherwise obviously guilty.

    simply put, that is wrong.

    my point is quite simple. double standard in this case works both ways. it is correct (as i stated) that the prosecutor is being way more cautious before charging murder than he would be if this was a civilian suspect. advantage: cop.

    it is also true that given a trial, prosecutors are way more likely to try it twice (if acquitted in state court) with cops than civilians.

    disadvantage: cop

  142. .. sheesh, preview is your friend..

    Nah. Preview is for timid unsure wimps. Real men confidently post comments with all sorts of typos, inoperative links and misattributed quotes. Then we make a second post because the first one was nigh unreadable.

  143. which of course does not dispute what i said. what i said is it happens more frequently with cops than with civilians.

    [citation needed]

    for example, OJ Simpson was obviously guilty as hell, but it doesn’t matter (i am talking about the ron goldman/nicole murder), that doesn’t make it “ok” for him to be prosecuted a second time for the same murder.

    Actually, he wasn’t prosecuted a second time. He was sued for damages. Neither the Feds nor the State of California were participants in that trial.

  144. err, dunphy, if this is a process-based analysis, why are you talking about the “spirit” of double jeopardy? While I appreciate your point, it’s a non-sequitur: it does not follow that just because the state does bad things to cops (prosecute them on a state and federal level, albeit for technically different crimes) that the State should therefore give deference to the police officer or impute a false mens rea (in this case, the recklessness Orloff seems to be conjuring from the ether).

  145. And one last time. COPS ARE CIVILIANS! They can quit when they like, call in sick, join a union, get paid overtime and get to poke the wife every goddam night.

  146. “Actually, he wasn’t prosecuted a second time. He was sued for damages. Neither the Feds nor the State of California were participants in that trial.”

    correct. which is my point. he WASN’T prosecuted a second time DESPITE the fact that he was guilty as fuck. as it should be.

    iow, you are supporting my point

    thx

  147. I wouldn’t put too much stock in legal analysis from a guy who repeatedly misspells “jeopardy.”

  148. “err, dunphy, if this is a process-based analysis, why are you talking about the “spirit” of double jeopardy? While I appreciate your point, it’s a non-sequitur: it does not follow that just because the state does bad things to cops (prosecute them on a state and federal level, albeit for technically different crimes) that the State should therefore give deference to the police officer or impute a false mens rea (in this case, the recklessness Orloff seems to be conjuring from the ether).”

    what i am saying is twofold

    1) cops are more likely to be tried twice. that’s a double standard as well, but it’s a disadvantage to cops, just as there are advantages in re: criminal prosecutions.

    2) that i disagree with the case law that decided that it wasn’t double jeapardy. iow, i (of course) concede that it isn’t DE JURE double jeapardy, but it most definitely DE FACTO double jeapardy. i am making the argument that the case law has been wrongly decided. iow, it’s the law, but it’s bad law.

  149. “I wouldn’t put too much stock in legal analysis from a guy who repeatedly misspells “jeopardy.””

    ooh, a spealling flaame!

    sweet. i guess i’ve arrived!

  150. “And one last time. COPS ARE CIVILIANS! They can quit when they like, call in sick, join a union, get paid overtime and get to poke the wife every goddam night.”

    ooh, a semantical wank. how fun.

    dictionary.com

    Civilian (n):a person who is not on active duty with a military, naval, police, or fire fighting organization.

    so spare me the semantical wank. even if it is semantically incorrect (which it isn’t according to the dictionary) to distinguish cops from civilians (iow non-cops) in the instant case. and hint, it *is* semantically correct, it has utility, and everybody knows what you mean.

    regardless,

    dictionary: 1
    you: 0

    hth

  151. I don’t agree with the way the double jeopardy thing has shaken out either, dunphy, but the point remains that your discussion of it is a non-sequitur. Or, IOW, two wrongs don’t make a right.

  152. it is not a non-sequitor, since it was in response to the concept of the double standard applied when cops are suspects of crimes.

    i pointed out (one example… there are others) of how the double standard is not just PRO police, but in some respects is anti-police.

    clearly not a non-sequitor.

    a non-sequitor would have been

    oh btw, i smell like elderberries.

    and nowhere did i claim that two wrongs make a right.

    i was explaining that the double standard is more complex than first elucidated.

  153. also noted that popular conceptions of double jeopardy (ooh, i spelled it correctly!) are often wrong.

    for example, i can’t tell you how many people when referring to the movie “double jeopardy” (with ashley judd) think that is a good example of how double jeopardy would have protected her if she had shot her ex-husband. even though she had already been prosecuted for killing her husband (and convicted) killing him (for real) the second time would NOT have been a double jeopardy prosecution for a # of reasons. it’s a nice hollywood canard, but it is not correct.

  154. ooh, a semantical wank. how fun.

    Call it what you like, but his point was substantive, not semantical. The point is that allowing police and others to call citizens “civilians” divorces the police from the rest of the community, which leads to an “us vs. them” mentality and fosters abuse of power.

    So, no, it was not a “semantical” point.

  155. that’s wonderful, angry optimist, but lame.

    first of all, you make the “cops/citizens” distinction which is ironic considering your claim that the cops shouldn’t be divorced, then you divorce them by imploying they are not citizens.

    how ironic, alanis.

    here’s a hint. cops are arguably not civilians (see the dictionary again), but they are CLEARLY citizens.

    so, in trying to make apoint that one distinction (that is semantically correct) shouldn’t be used, you use a distinction that ISN’T semantically correct.

    amazing

  156. note that i am not using the heinlein definition of citizen (starship troopers) of course.

  157. I wonder if is the NRO’s LA police officer with the same nom de plume. Or if he’s using the name as a deliberate reference. (or if he’s using the name ironically and is just someone looking to pick a fight)

  158. “I wonder if dunphy is NRO’s LA police officer.

    (@6:35 – see I’m a real man!)

  159. civilian is a military term. I’m not going to sit here and guide you through J sub’s substantive point; regardless, it wasn’t semantical in the least.

  160. nice catch. i use the name as an homage

  161. “civilian is a military term.”

    iyo. the dictionary has an alternative definition. #1 given

    hth

    again, it’s a semantical wank;

    get over it.

    moveon.com

  162. dunphy:

    Is it your position that cops deserve special prosecutorial treatment due to this anectodal double-jeopardy disadvantage?

  163. Only 11 hours and 17 minutes before we get new material here.

  164. first of all, argumentum ad dictionary is not a legitimate debating tactic. Secondly, yet again, the point about not calling non-police “civilians” isn’t semantical, for all the reasons I have laid out.

    Perhaps, instead of wasting time arguing about the dictionary, you would like to address the actual point, that calling non-police “civilians” is destructive?

  165. dunphy —

    The double standard is not “complicated”, because cops, as a general rule DO NOT GO TO JAIL when they do bad things. Other people who are not cops do.

    Phenomenology FTW. Whatever causes effects rulz.

  166. Yes, I’m sure that prosecutor is just “taking his time” preparing sum reel gud evidence against this guy. That’s what is really taking so long.

  167. “The double standard is not “complicated”, because cops, as a general rule DO NOT GO TO JAIL when they do bad things. Other people who are not cops do. ”

    that’s simply absurd.

  168. “first of all, argumentum ad dictionary is not a legitimate debating tactic. Secondly, yet again, the point about not calling non-police “civilians” isn’t semantical, for all the reasons I have laid out.

    Perhaps, instead of wasting time arguing about the dictionary, you would like to address the actual point, that calling non-police “civilians” is destructive?”

    perhaps you don’t get to define what a legitimate debating tactic is.

    perhaps you’d like to apologize for your “destructive” tactic of calling police non-citizens (by inference).

    ETC.

    get over it.

  169. *sigh* pedantry is such a dick move.

  170. “Is it your position that cops deserve special prosecutorial treatment due to this anectodal double-jeopardy disadvantage?”

    no. my position is that NOBODY should be subject to double jeopardy.

    my analysis, otoh, is that the double standard works both ways. in some ways, cops have benefits from being cops, and in other ways, drawbacks, when it comes to criminal prosecution (not to mention civil issues. like if a cop’s significant other gets a protection order against them, they generally lose their job cause they can’t carry a gun (see VAWA) despite the fact they were never proved guilty of any crime) etc.

    iow, it is not as simple or one-way as first posited.

  171. dunphy —

    “Murder” and “deprivation of civil rights under color of authority” are separate crimes. There is no double jeopardy. One is because you killed a guy, and one is because you harmed someone while enjoying the authority that comes with a badge and a spiffy uniform.

    You can’t possibly be this dense, can you?

  172. elemenope, i am well aware of the justification used, but as i said imo it’s double jeopardy.

    the issue should not be that the charged crimes are seperate. the issue is that underlying ACT was the same.

    let’s use the rodney king case.

    what they did was bludgeon the guy like a baby seal with batons. whether you call that “assault” or “deprivation of civil rights under…” etc. the ACT was the same.

    if johnny dirtbag strikes you with a baton, the state is going to get ONE shot at the apple and charge him with assault.

    if a cop does the same thing, the state (rather routinely) gets two shots, by having the federal prosecution option if the state option fails.

    despite the fact that this is not DE JURE double jeopardy, (based on case law), it is clearly de facto double jeopardy.

    you are being tried twice (after being acquitted the first time) for the same UNDERLYING ACT.

    i am well well well aware of the case law on this. i’ve probably read at least two dozen cases related to this legal principle.

    but just because it is the current “law of the land” in terms of case law, does not mean it is just or correct.

    have you ever (lord forbid) disagreed with the constitutional analysis of our SCOTUS or any local court?

    iow, as i said before, i am VERY well versed in the case law and the reasons why it is not CONSIDERED double jeopardy.

    my point is that it clearly IS double jeopardy despite the legal machinations used to “justify” that it isn’t.

    i wasn’t aware that the powers that be, the scotus, etc. are always right. are you?

  173. “*sigh* pedantry is such a dick move.”

    citzens/non-citizens… not addressed.

    ad hominems used instead.

    now THAT’s a dick move.

    hth

  174. because your “point” is ridiculous and untrue. I see that, rather than debate about substance, you’re going to constantly retreat into silly points of language construction.

    You’re not as clever or engaging as you fancy yourself. Dick.

  175. angry optimist, you only diminish yourself and the strength of your “argument” (for what little it’s worth) by your use of childish name calling.

    the fact is that your argument is non-compelling, and you want it accepted on its face.

    sorry.

  176. Of course I’ve disagreed with SCOTUS on many points in the past. Just not this one.

    The underlying act is not the standard that has *ever* been used to determine jeopardy. I think that as angry as TAO is with you, and as many nasty things he says, he’s right simply on the merits; you have no *point*, only an intuition about some normative point which is led astray by a weird idea of how jeopardy should attach. It’s all fine and dandy to have a personal opinion about a world more perfect you’d like to live in, but it has little relevance for this one.

  177. Well dunphy, by the “underlying act” theory, someone should never be charged with two offenses for the act, correct? So if a bystander dies of a heart attack during a bank robbery, the accused should either be charged with either a homicide (2nd degree murder or manslaughter), or with bank robbery. Is this what you’re saying?

  178. elemenope, at least (unlike TAO), you have a point.

    obviously I disagree on your analysis. but at least it IS an analysis.

    the point of double jeopardy is this: you shouldn’t be tried twice for the same bad act. it’s really that simple.

    and once jeopardy attaches in a case, that’s the only chance the state should get.

    as for the analysis…

    the ultimate issue is what is referred to as “dual sovereignty”

    and the feds are subject to the “petite” doctrine, which is the ULTIMATE political justification for such prosecutions.

    it is unjust, and imo unconstitutional.

    the petite doctrine essentially says the feds should only prosecute (they have dual sovereignty) in “compelling” cases.

  179. “Well dunphy, by the “underlying act” theory, someone should never be charged with two offenses for the act, correct?”

    obviously that is not correct.

  180. obviously that is not correct.

    But obviously that’s where your theory of jeopardy leads, hence it is flawed.

  181. Right, no one is being tried twice in my example. But it’s the same idea – One act triggering multiple charges by the state.

    Except of course, in my example, the accused is much less likely to be a police officer.

    Just so we’re clear, you believe that if a police officer beats a person without cause this should be either assault or a civil rights violation; if someone robs a bank that leads to a heart attack, it should be both bank robbery and murder. Is this correct, or have I missed something?

  182. My point with him is that he understood and knew what J sub D’s point was about the “civilian/police” distinction, what is wrong with it and what he was trying to say, and it was twisted into a “semantic” argument.

    Regardless, dunphy’s real “point” is a giant red herring: it is a fact that a prosecutor would have made an arrest and filed charges already if this were not a police officer. Stating “yeah, but police officers sometimes get charged in state and federal court” is irrelevant.

    So, dunphy, would you care to actually comment on the issue at hand, or try to toss more red herrings into the mix?

  183. Red herrings smell.

    Srsly.

  184. bakedpenguin, to make an analogous case…

    you are arrested for murdering a postal service worker (both a state crime (murder) and a federal crime) who is on duty, etc.

    you are prosecuted in state court for murder.

    found not guilty.

    then, the feds charge you with the killing of the postal worker (a different federal charge), but for the same ACT.

    under the “dual sovereignty” doctrine, this would not be double jeopardy

    but CLEARLY, it is.

    same concept.

  185. “But obviously that’s where your theory of jeopardy leads, hence it is flawed.”

    no., clearly your reading comprehension is flawed.

    really, it’s not that difficult to understand this concept. read more slowly.

  186. “Just so we’re clear, you believe that if a police officer beats a person without cause this should be either assault or a civil rights violation; if someone robs a bank that leads to a heart attack, it should be both bank robbery and murder. Is this correct, or have I missed something?”

    you’ve missed the entire “thing”.

    the point is that having two SEPERATE prosecutions for the same act, one following an acquittal, is double jeopardy. iow, i disagree with the dual sovereign doctrine.

    this same rule should apply to both civilians and cops (hi TAO!!!), but in practice, cops and govt. officials fwiw, are more likely to be double prosecuted.

    iow, you are making the error in distinguishing between a serial and a parallel thing.

    you can charge all sorts of crimes for one act. and you get ONE chance to prosecute the person

    you don’t prosecute the person in state court. he is found not guilty, then call the crime something different and charge it in federal court.

    do you grok the distinction?

  187. dunphy —

    Over and over, you merely assert that such-and-such a circumstance is CLEARLY (with varying degrees of textual emphasis) double jeopardy.

    Double jeopardy deals only with risk of life and limb for the same *crime*, not the same *act*. Every lawyer at the bar will tell you so, and slap you like a red-headed step-child for asserting without an argument except for your feelings of OBVIOUSNESS and CLARITY that it be otherwise.

    You are the one arguing against the status quo, so the burden is on you to demonstrate why the status quo is flawed. Surely you can do better than arguments towards sentiment and ostentation.

    And I read just fine, thank you.

  188. dunphy —

    For another tack, since this is going nowhere, would you stipulate that by dint of their authority and power over others, officials (such as police officers, politicians, bureaucrats) have a responsibility to use that power ethically, and are vulnerable to commit certain crimes that are made possible simply by the power and authority they possess?

    If so, then what is your objection to there being different crimes being tried by different courts proceeding from the same act when that act violates not only a criminal law but also a public trust?

  189. “Double jeopardy deals only with risk of life and limb for the same *crime*, not the same *act*. Every lawyer at the bar will tell you so, and slap you like a red-headed step-child for asserting without an argument except for your feelings of OBVIOUSNESS and CLARITY that it be otherwise.”

    actually, yet again, you are wrong. i do most of my posting at a (libertarian) legal blog. PLENTY of lawyers agree that the concept of dual sovereignty is a sham used to to circumvent the prohibition on double jeopardy.

    as i have said, i am well aware of the case law.

    and i disagree wtih it for the reasons given.

    see my postal worker example above.

    the cops in the king trial were tried twice (after an acquittal) for beating the crap out of rodney king. only under the most twisted constitutional analysis, is this NOT double jeopardy.

    dual sovereignty is a sham.

    it’s right up there with (for example) claiming that somebody growing their own mj under state medical mj laws is federally prosecutable because it’s “commerce” (see: the commerce clause).

    the state should get one bite at the apple. not two.

  190. Dual sovereignty is a sham?

    There are definitely some governors who would take exception to that revelation….

  191. “For another tack, since this is going nowhere, would you stipulate that by dint of their authority and power over others, officials (such as police officers, politicians, bureaucrats) have a responsibility to use that power ethically, and are vulnerable to commit certain crimes that are made possible simply by the power and authority they possess?”

    of course.

    “If so, then what is your objection to there being different crimes being tried by different courts proceeding from the same act when that act violates not only a criminal law but also a public trust?”

    because in the case discussed (king) there was one bad act – beating the crap out of rodney king.

    and just like ANY assault, the state should not get to try it twice. see: double jeopardy

    i have no problem with additional charges (if warranted) being put on the docket at the ONE trial, if they apply because of the special circumstances.

    i have a problem with trying them for the same thing (beating him) a second time because he was found not guilty the first time.

    that’s odious and goes against everything the founders intended when they included the double jeopardy clause (note that this concept greatly precedes our constitution as well).

    it’s really that simple.

    if you believe in the rule of law, that is.

    see, (again) my postal worker murder example.

  192. “Dual sovereignty is a sham?”

    when used to get around double jeopardy it is.

    note it also GREATLY increases federal power. something libertarians are supposed to be against (drink!).

    that’s a broader topic (obviously) the incremental expansion of federal (police and otherwise) power.

    let’s look at the instant case (BART case). let the prosecutors (federal and local) look at the case facts and decide WHO prosecutes it. and then they get ONE trial. not two (a la king).

    that would be consistent with the double jeopardy clause.

  193. note it also GREATLY increases federal power. something libertarians are supposed to be against (drink!).

    Technically, dual sovereignty creates/maintains both state power and federal power, and *Libertarianism* has jack and shit to say about whether local tyrannies or those further afield are preferable. Constitutionalists, who have become somewhat synonymous with the Libertarian movement in the public eye (because of its superficial similarity with legal conservatism), have much to say on the issue, and pretty much every constitutional scholar I’ve had the privilege of reading/talking to, the constitutional system is one of divided sovereignty.

  194. there is a hy000ge difference between divided sovereignty and DUAL sovereignty. especially when it comes to placing citizens in jeopardy.

    i also disagree that libertarianism has nothing to say about local vs. federal tyranny. the latter is preferable for a # of reasons.

    1) federal constitutional rights are the law of the land. any state can recognize expanded rights (mine certainly does) but none can recognize less. so, a local tyranny can be reigned in by the fed’s. a federal tyranny can be reigned in by?

    2) when subject to a local tyranny, you can MOVE to a state that is more libertarian. when rights are restricted at the federal level – you can’t.

    etc.

    sorry, but methinks your analysis is weak…

  195. oops, should be the FORMER is preferable.

    typo.

    also note that i used #2. i used to live in a state that was far too statist for my liking. i moved to a more libertarian state.

    i chose a state that is a “shall issue” state, and a state with no income tax.

  196. (a la king)

  197. So, it appears that the larger point is that the police may (just “may”) be discriminated against in the judicial system, depending on how you interpret double jeopardy.

    OTOH, Mehserle is still walking around (!-does anybody know where he is?) and Orloff is talking about waiting three weeks after the incident to even decide if he’s going to charge Mehserle.

    Yes, the double standard is *such* a myth.

  198. Does anyone have a valium to give to dunphy?

  199. “So, it appears that the larger point is that the police may (just “may”) be discriminated against in the judicial system, depending on how you interpret double jeopardy.

    OTOH, Mehserle is still walking around (!-does anybody know where he is?) and Orloff is talking about waiting three weeks after the incident to even decide if he’s going to charge Mehserle.

    Yes, the double standard is *such* a myth.”

    which of course nobody is claiming.

    from ad hominem to strawman.

    thanks for offering the free course in logical fallacies!

  200. !…does anybody know where he is?

    If this thing weren’t so fricking tragic, that part would be the funniest.
    —————-
    “We’ve lost Gorgeous George.”

    -In the quiet words of the Virgin Mary…come again?

    “We’ve lost Gorgeous George.”

    -How’s that? It’s not like he’s a pair of car keys, is it? And it’s not like he’s incon-fucking-spicuous, is he?

  201. snatch- great movie.

    great exercise too.

    krastev still holds the record at 216 kilos

  202. you are claiming that the double standard cuts both ways, when it is clear that the evidence that it cuts in a negative way is ambiguous, but we have clear evidence (this case) of it cutting (yet again) in a positive way.

  203. again, you are wrong. first of all, the double jeopardy thing is just ONE example. it is not exhaustive, nor did i claim it was.

    and the only evidence we’ve seen that it cuts the way you claim in the instant case is the delay in charges (because that’s all that’s occurred at this point).

    lord forbid we wait to see what he IS charged with, and what happens in the preliminary proceedings before rushing to judgment that the prosecutors are going to give the cop some kind of special treatment.

    and again, the evidence is not ambiguous. a second criminal prosecution after an acquittal is far from ambiguous.

  204. There are certain criminal acts that violate a large number of laws, and the prosecutor can use his discretion to determine which one(s) that you can be charged with. Since there is a federal legal code, as well as a state code, it seems that A SINGLE ILLEGAL ACT (caps lock is cruise control for cool) could fall under two legal jurisdictions, and thus could require multiple trials. The whole concept of double jeopardy was to protect from multiple prosecutions for violation of a law, not multiple laws in multiple jurisdictions

    Dunphy, you seem to be arguing against the great majority of legal precedent in the US to suggest that cops are somehow justified in their protection of criminals in their own ranks, because they are more exposed to your made-up “double jeopardy”. I can tell you that I will never face federal charges stemming from violation of civil rights under pretense of authority, because I have no authority. That is a federal law developed to combat the cronyism in the old south, and is a very good application of federal force.

    Also, I agree that cops are civilians. The division created by the us vs them mindset is one of the reasons for the failure of the police state. Both groups are citizens, and should be treated as largely equal.

    BTW, I don’t think that soldiers are citizens. They are a distinct legal class under the UCMJ (I was in the 82nd, so don’t flame). Under the UCMJ a blowjob from your own wife is a punishable offense. Military terminology should be reserved for the military.

  205. Only 5 hours and 40 some min. until a fresh article is up.

    Our new visitor is quite uninteresting. He jumps to the dictionary game when in disagreement on common terms but tosses away the same dictionary for legal terms when they do not suit his incorrect argument.

    I wonder who it could possibly be . . .

    Someone around here does that all during the day too.

  206. hi there. i’ve been watching this thread with interest. i just landed in caracas, venezuela (because it doesn’t have an extradition treaty) and a high-ranking local informs me there’s a good chance i can go to work for one of hugo chavez’s security forces, where i’ll be allowed to shoot people occasionally without all the brouhaha that attended my debut in culling undesirables. like the jefe said, all they care about is if i can hit what i’m shooting at.

    it was a rough ride down through mexico and central america, these people have some really out-of-the-way airstrips. no vip lounges or skycaps, either, just unbelievably grizzled and grotty old hispanics dressed worse than the skankiest derelicts you ever saw on a bart train. i’ve had quite enough aviation for awhile.

    my first impression of venezuela? the women here are gorgeous. it’s no wonder they win world beauty contests every two or three years. the little gal over there at the counter right now, ooooh, she has an amazing hourglass figure and breasts firmer than your grandma’s christmas fruitcake, i’d hit on her, but i’m real tired from the flying and i wouldn’t want to make her mad on account of her ak-47.

    doesn’t look like i’m gonna make the superbowl party, sorry guys. besides, down here it’s called futbol and you aren’t allowed to use your hands or put epic hits on the guy with the ball. it’ll take some getting used to. gotta go, a big plate of terrific-looking seafood just arrived.

  207. Huh. Just like the ending of “Burn after reading”. Interesting . . . (Yawns)

  208. …you realize it’s going to be a Chapman article, dontcha?

  209. For those,

    You were correct.

  210. you don’t prosecute the person in state court. he is found not guilty, then call the crime something different and charge it in federal court.

    I would ordinarily agree with this, but not in cases where the state could not prosecute for an equivalent of the federal crime because the charge in question did not exist at the state level.

    If a state tries someone for murdering a citizen, loses, and then the feds take over and retry for murdering a “postal worker”, I would agree that this was double jeopardy, since the underlying crime in both cases is the same – murder.

    But a state cannot prosecute someone for federal civil rights violations. By definition. The civil rights charges are separate and distinct crimes that do not exist at the state level. Also, it was not necessary for the cops to be guilty of assault to be guilty of violating King’s civil rights, so the question of guilt or innocence of the state charges was not relevant to the federal prosecution.

    I will meet your postal worker example with a counter-example: A man kills a state trooper while attempting to flee the country with secret documents he wants to turn over to a wartime enemy. He is tried for murder at the state level, but because of procedural errors and conflicting witness testimony he is found not guilty of killing the cop. This not guilty verdict would not restrain the feds from trying the guy for treason and espionage, because it’s not a state’s job to prosecute for those charges. And it would not be double jeopardy for them to do so.

  211. I’m a prosecutor, and yes it would take time to decide whether to press charges in a case like this. It’s a high profile, media intensive, murder case against a police officer.

    First of all, you have to do an independent investigation of all the evidence to double check the media version of events, and to make sure your decision is based on the actual evidence, and not just the public version of the story.

    Second, you have to be very careful in general pressing charges against police officers, because if you jump the gun and are perceived as unfair, it could make the police hate you. That would make it next to impossible to do your job in the future.

    Finally, before you indict, you have to do a lot of research and double and triple check all the law, because you can’t allow for any mistakes. You need to be absolutely positive that you’re doing everything right, legally.

    My opinion could change based on what happens later, but right now, I don’t see any reason to believe that the prosecutors are giving this guy any kind of break on a murder charge. It’s just a politically sensitive case that warrants extra caution. I could be wrong, but time will tell.

  212. Second, you have to be very careful in general pressing charges against police officers, because if you jump the gun and are perceived as unfair, it could make the police hate you.

    This, of course, is the real reason.

    Forget the “media version.” There is more than enough evidence on videotape that takes, oh, fifteen minutes to evaluate to bring an indictment.

  213. “it could make the police hate you.”

    jesus h. fucking christ on a harley-davidson! anne, anne, you can’t have the police hate you, that would be the worst thing under the sun. rather than risk that, it’s far better to just let them backshoot black men who are lying on the ground, then take a few weeks off for backpacking and spa treatments. it’s far better to risk other black men setting your city on fire. it’s far better to encourage asymmetric urban warfare where they snipe at cops with 30.06’s out of tenement windows, but you absolutely can’t have police hating you, you miserable fucking statist tool. you have to get off the internet now, officer friendly wants another blow job.

  214. “If they aren’t trying to kill you, you aren’t doing your job right.”

  215. Look, political pressure is a part of life for every public official, including prosecutors. They aren’t talking about not filing charges, they’re talking about a delay in filing charges. (As of now, at least. If they give this officer a pass, my opinion of the case will change.)

    In my experience, it always takes at least a couple of weeks to file charges in a murder case, because it is the most serious charge you can file, and you want to make sure you aren’t making any mistakes. And that includes legal mistakes with the charges themselves, not just the person charged. Heavy media scrutiny and police involvement just adds to that. I’m sure if you look at other high profile murder cases, you’ll find similar time frames for the actual filing of charges.

    I’m curious, do you think that prosecutors should leap into action and immediately file murder charges whenever there is public pressure to do so? Should they only spend “fifteen minutes” investigating all murder cases? Or is this something that only applies when a police officer is the defendant?

  216. I don’t see any reason to believe that the prosecutors are giving this guy any kind of break on a murder charge.

    Open your fucking eyes, then.

  217. @Anne: I simple don’t believe that if you had video and testimony that a non-cop suspect had shot a restrained man in the back it would take you “a couple of weeks” to put together an indictment good enough to put the suspect in the can while you got your ducks in a row.

    I just don’t. Not even if the suspect was a celebrity.

    So, I conclude that this is about good ‘ole boyism or plain old fear on the part of the prosecutor. And either way there is a systemic problem with law enforcement.

    Or do I just not get it? Do the system really leave violent men walking around free for weeks after well documented crimes without so much as a booking and bail hearing?

  218. anne, if a black man had backshot a helpless cop on video, would you let him run around free for several weeks while you investigated? if the answer is no, then stop with all this crapola about the need for a painstaking, meticulous investigation. officer friendly is still waiting for his blow job, better not disappoint him or he’ll hate you!

  219. My comments were about filing charges, not about whether the subject should be in jail while awaiting the filing of charges.

    Arresting someone and filing an indictment are two completely separate things. Before an indictment is filed, it is the police who are responsible for making arrests, not the prosecutors. We can’t just pick up the phone and say “arrest that guy.”

    But anyway, I didn’t know the guy wasn’t in jail before I read those comments, so I don’t know enough to have an opinion on that subject. But as for the filing of charges,

    EscapedWest says “I simple don’t believe that if you had video and testimony that a non-cop suspect had shot a restrained man in the back it would take you “a couple of weeks” to put together an indictment good enough to put the suspect in the can while you got your ducks in a row.”

    I don’t know if you remember the Atlanta courthouse shootings, but in that case, Brian Nichols, a black man, overpowered a guard, took her gun, and then opened fire in a crowded courtroom. He killed the Judge, the court reporter, and two officers, and he was caught on camera doing it. That happened on March 11, 2005. He was not indicted until almost a month later, on April 10, 2005.

    http://www.11alive.com/news/local/nichols/story.aspx?storyid=121399

    You don’t indict someone just to get them arrested. But like I said, I don’t know enough about the arrest angle to really comment on it.

  220. You don’t indict someone just to get them arrested.

    Ok. Mea culpa. My ignorance is showing.

    I don’t know if you remember the Atlanta courthouse shootings, but in that case, Brian Nichols, a black man, overpowered a guard, took her gun, and then opened fire in a crowded courtroom. He killed the Judge, the court reporter, and two officers, and he was caught on camera doing it. That happened on March 11, 2005. He was not indicted until almost a month later, on April 10, 2005.

    I recall. But, once recaptured he did his waiting behind bars—as he should—and would have even if he hadn’t been in the system to begin with, no?

    I think we’re on similar pages here.

  221. That happened on March 11, 2005. He was not indicted until almost a month later, on April 10, 2005.

    When was he arrested, and taken into custody? I’m guessing “promptly”.

    And I will restate, for your benefit, a point I have made in the past. Until the “good” cops begin to arrest their “bad” co-workers, and testify against them in open court, I will proceed with the default assumption that there is no such thing as a good cop.

    That motherfucker should have been disarmed, bodyslammed to the concrete and cuffed right there on the platform.

  222. bruce, real classy. I think you just got p0wned.

  223. anne, i don’t believe you’re really a prosecutor, because your knowledge of california criminal procedure is…limited. let me help you out:

    criminal prosecutions in california can begin in one of two ways, a grand jury indictment, or (much more commonly) the prosecutor files a complaint known as an “information”.

    when the prosecution files an information, the case must go to a preliminary hearing before it can go to trial. an indictment skips the prelim.

    the advantage of an indictment, from the prosecutorial perspective, is that the d.a. can insulate himself from the responsibility for the decision. that’s why you see him go to the grand jury so frequently in political “hot potato” cases. he can softball his evidence in the secret grand jury room, then come out and tell the media that the grand jury refused to indict.

    you didn’t know the guy wasn’t in jail before you read the comments on this thread? what can i say about a level of ignorance that transcends all understanding? it may have taken a georgia prosecutor a month to indict the atlanta courthouse shooter, but i can assure you that he was indeed in custody the while. i can also assure you that if oscar grant had backshot johannes mehserle on video, the prosecutor would have filed an information in about 48 hours.

  224. maurkov, we’re talking about a state murder of an innocent, defenseless citizen here, and in this context, issues of classiness or getting “p0wned” do not concern me in the slightest. i have enough self-esteem to get me through the day.

  225. No, bruce, that’s what the grown-ups were talking about. You were talking about fellatio. But in light of 3:14, welcome to the conversation.

  226. fellatio was a metaphor

  227. oh maurkov, i cheerfully admit that my inner child and adolescent are significant components of a personality occasionally characterized as america’s oldest juvenile delinquent. my youthful outlook at age 53 is much valued in meatspace. i see that you have added nothing to this conversation except for your apparent discomfort at fellatio references, which makes me wonder if there’s something in your background which sensitized you to this subject. there’s nothing wrong with sucking a dick if that’s your inclination, as long as you don’t go senator larry craig on me from an adjacent stall.

  228. “You’re only young once, but you can be immature forever.”

  229. and you can grow older without growing wiser, too. since you’re apparently the host here “welcome to the conversation”, be a good fellow and fetch me a desert-dry double bombay sapphire martini with a twist, stat. your patient is parched!

  230. you left out the part about the citizens protesting across the city and the cops forcing it into riot situations.

  231. Escaped West and Brian,

    My previous comments were in response to the question in the post directed to prosecutors. I’ve now watched the video and looked into the media reports a little. Sorry, this is a little long, but there’s no short answer to the question.

    First, you need a little background on the way prosecutions work. Criminal cases come into the D.A.’s office through the police. Police investigate a crime, compile evidence, make an arrest on a specific criminal charge, prepare a report, and submit the case to the D.A.’s office. The prosecutors then decide whether to go forward with formal charges, and what those charges should be. They then file an indictment or information, which starts trial proceedings, and the case is prosecuted based on the evidence already gathered by the police.

    In this case, it looks like the transit police are just starting their own investigation, so they haven’t sent anything to the D.A.’s office. I’m guessing that the D.A.’s office didn’t even hear about this case until it broke in the media, and that puts them in kind of a backwards position from the way they normally do things. They can’t file an indictment until they’re ready to go forward with trial, but they don’t even have any police reports, background investigation, or evidence that’s ready to present to a grand jury or anyone else.

    As incriminating as the tape looks, you can’t just go forward without an investigation. You have to get your evidence together, come up with an alleged motive, find witnesses, take reports, figure out which charges are appropriate, etc. Also, there’s an extra problem here because the transit police have jurisdiction over the case, but they are in a conflict of interest situation that might require an independent police agency to be brought in before the case can even be investigated.

    Here is what the D.A. said:

    “Alameda County District Attorney Tom Orloff said he plans to move quickly toward a decision on possible charges.

    ‘These things normally take weeks rather than days, but I am trying to expedite this and get it resolved as quickly as we can,’ Orloff said.”

    I don’t see a problem with this statement. It’s correct, and it’s the only responsible way to handle a criminal case. The truth is that these things do take time. Based on the video, I think there’s a good chance the shooting was accidental. It may not have been, and even if it was, there will still likely be charges. But the State needs to actually know the answer to that question before going forward.

    I know the D.A. said that they’re still deciding whether to file charges, but odds are the decision has already been made. It’s just that there are strict rules about what prosecutors are allowed to say to the media, and you take a big risk when you announce a charging decision before your investigation is complete. If you end up changing the charges, your case could be reversed because you prejudiced the jury pool. And if you accuse the guy of murder and turn out to be wrong, you’ll find yourself enjoying an extended vacation with Mike Nifong.

    As for why the guy isn’t in jail, I can’t say for sure. But before you can put someone in jail, the D.A. or police have to charge a specific offense supported by probable cause. There are situations where you file a quick charge just to get someone off the street and then amend the charges later, but that is generally when the suspect is a flight risk or likely to reoffend. I don’t know whether either circumstance applies here. But in general, it’s best to have your case together before you even get started.

    Sorry this was so long, but I hope it helped. I know it’s frustrating when justice is slow, but that’s the only way to prevent serious miscarriages of justice. Mike Nifong, anyone?

  232. I watched the video, and, being somewhat experienced in firearms use, I am of the opinion that it was a negligent discharge. The officer had a surprised look on his face after he heard the shot.

    He should probably be charged with a negligent homicide, or reckless homicide, as he clearly should not have had his finger on the trigger at that time. If you watch the video closely, he was looking away when the shot was fired. If he was intending to murder the victim, I think he would have been looking at him.

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