• "God invented war so Americans could learn geography" -- Mark Twain.

Tuesday, November 25, 2014

What Ever Happened to the Elisor?

Anyone who expected the Ferguson grand jury to return an indictment is living in a Jeffersonian fantasy world. 

Needless to say, there will be the predictable arguments between the equally predictable two sides each of which will cite and ignore the facts as most suits their case. America’s perennial dialectic is nothing if not predictable.

I for one am not going to delve into this unresolvable thicket because the fundamental issue is as simple as it has been ignored:  nemo iudex in causa sua.

Gee... that sounds like Latin!  It is; and it is one of hoary collection of Roman legal maxims considered to jurisprudentially axiomatic.  The maxim holds that no one should be a judge in his own case.

Once this maxim is taken to heart it can be seen that the grand jury process was null and void from the start. 

Officer Darren Wilson was a member of the local law enforcement team.  But so too was Robert McCulloch, the St. Louis County Prosecuting Attorney.  Is there anyone who doubts that McCulloch is and considers himself to be part of that same local law enforcement team? Of course not.

So — wonder to behold — the law enforcement team has investigated itself and has come to the astonishing conclusion that it did no wrong.

Some savant will no doubt point out that it was the jurors who made the ultimate decision.  That is true enough but they arrived at their decision only upon being guided and instructed in the facts and the law by the prosecutor.  The proceedings were in no wise adversarial and one can bet his last doughnut that the prosecutor carefully insured that the decision he desired was arrived at “fair and square” as the saying goes. 

We have seen this work before. Back in June of this year, in California, the Santa Rosa County Prosecutor’s Office published the results of its own investigation into the fatal shooting of a twelve year old boy by a sheriff’s deputy.  The boy had been carrying a toy AK-47 and was blasted away as he turned around to face the cop who was yelling at him from behind. 

Every single witness who saw the shooting described the police action — from stopping the patrol vehicle to assuming a firing position to killing — as a “seamless” sequence of no more than 10 seconds.  Although he later revised his findings, the state’s coroner initially concluded that the first shot had entered the boy’s back.

There had been no reports of a disturbance.  The boy had not been play shooting at anyone.  He  was simply walking down the street when the deputies swooped down from behind and blasted him into the next world.

Oh what to do?  Just as deputies are trained to shoot, lawyers are trained to obfuscate.  Under the skilled hand of the prosecutor, “ambiguities” (on trivial points to be sure) were discovered in the witnesses’ accounts, allowing them to be “discounted” as not shedding any certain light on the central issue....

Then, over the course of 100 pages, the victim’s turning around motion metamorphosed from one involving a physiologically natural “lift” in the angle of the firearm to an apparent “pointing” of the weapon at the deputy who, of course, in the millisecond allowed, had to make a life and death decision....   

The report, swallowed whole by the establishment press, was a paradigmatic example of sophistical equivocations, non-sequiturs, irrelevancies, and such misstatements as might be called lies by another name.

We dissected this stinking heap of offal line by line in order to prove the more fundamental point that county prosecutors have no due and fair business investigating the misconduct of county law enforcement officers.  They cannot be fair and, in the event, will not be fair because they labor under a fundamental conflict of interest.

There is no doubt in my mind that the same fundamental conflict existed in St. Louis County and that the “case” presented to the grand jury in Ferguson was just as much a heap of misleading sophistries as the Santa Rosa investigative report.   The crafty evasions and subtle confusions that infused the Santa Rosa report were just as presentable to a grand jury in a unilateral, prosecutor-scripted hearing.

There is, as it turns out, a procedure under common law that would have resolved this conflict: the appointment of an elisor.   An “elisor” is a person appointed by the court to take charge of grand jury proceedings when the local officials are themselves disqualified due to a conflict of interest.

The Common Law clearly understood the ancient Roman maxim.  It is symptomatic of decadent corruption of law in the age of tyranny that it never occurred to Mr. McCullough to insure that the proceedings would be at least as above suspicion as Caesar’s favorite boy-toy.