There are calls for the District Attorney in Ferguson, Missouri to be replaced or to recuse himself. Why?
"[Robert] McCulloch's father was a police officer and was killed on the job in 1964 by an African-American man, when McCulloch was 12, McCulloch's spokesperson Ed Magee confirmed to CNN. In addition to his father, McCulloch's brother, an uncle and a cousin all served with the St. Louis Police Department, and his mother worked as a clerk at the department, Magee said."
Ah jeez. I am on record, very recent record too, advocating that local D.A.'s should not be investigating local police shootings. Why? Because local prosecutors work with local cops on a daily basis and it is very hard to go from being law enforcement ally to law enforcement adversary and then back again to ally. Typically, in my experience and in Ferguson, the incestuous relationship goes even deeper: the cops investigate their own! So today's brother in blue is tomorrow's suspect in blue.
So why does this seem different to me? My first reaction was and my reaction still is "Nope. Not enough." I guess because this isn't a policy decision, it's personal to Mr. McCulloch. He, it is claimed, and his office, can't be fair. But isn't a personal, "case-by-case" policy fairer than a blanket policy, as I advocate? Isn't that in fact how, like, the law proceeds, case-by-case? It is. Isn't that part of what I have called the law's "modesty," not, or being cautious about, going beyond the case at hand, being very reluctant to, establish broad frigging policy? Yes! Yes, it is! boo-hoo-hoo (The witness is breaking down under cross-examination.) And wouldn't you acknowledge, SIR, that in a case-by-case "policy," THIS one cries out for Mr. McCulloch's removal? Yes! Yes! I confess! I confess! I shot Michael Brown! Wait...
All of that is true, well, not the confession, but that truly is the law, or what the law's aims are but it's not ALL the law. It's true as far as it goes but it doesn't go far enough. The law takes a case-by-case approach to the facts but not as to the applicable law. The "policy" discussion above is really a discussion about the law. We don't make up the law on a case-by-case basis, we have centuries of statutory and common law that guide, usually dictate, the legal principles that govern the outcome. They are "precedent," they provide stare decisis and they are a priori, established ahead of time. That's the law against ex post facto laws, you can't make up a law that never existed before and apply it to some poor Schmo retroactively. You are not kept in the dark on the law, in fact, you are presumed to know the law! Judges don't make up the law when you go to court, they apply what has already been made. Here's another legal nostrum, the law is an organic thing, don't you know? It grows, it mutates, it evolves, it has babies--all to serve the public interest, too late in Johnstown, Pennsylvania's case. The law is process-determinative not result-determinative but the law is not result-insulated. It orders, it regulates, it serves the public interest. You're supposed to get justice out of it. When the public does not believe that it is getting justice, then the law's ability to order and regulate is compromised. The law pays attention to this. There is no law that can or should be passed or changed or evolved in the Missouri case. That would have to come later. Of course the law sets "policy, of course it sets policy, legal policy. Finally, there is the law against making laws specific to an individual. "You, Harris, new law: you, and only you, must now wear your underwear on the outside." Can't do that: equality before the law.
So, "Wait..." above incorporates everything...below the wait. And so I believe my first reaction to the calls for Robert McCulloch's removal was sound. It seems to me to violate the principles behind the ex post facto laws and equality before the law, it is against established precedent, (there is a "policy" in place for removal or recusal) and, in my opinion, it sets bad precedent for future policy. My suggested law that "Thou shalt not investigate one of y'all's own" avoids all those problems. The cops and the D.A. in the next county over investigate Ferguson P.D. homicides and Ferguson will reciprocate whenever y'all have one. But man, it sure does seem as if this is not the "appropriate" case for Robert McCulloch, with his and his family's history. It would not establish bad legal precedent--or any legal precedent at all--for Robert McCulloch to voluntarily recuse himself, to grit his teeth and swallow the insult to his integrity and acknowledge the public interest and just recuse himself. Bet he doesn't need the work.
"[Robert] McCulloch's father was a police officer and was killed on the job in 1964 by an African-American man, when McCulloch was 12, McCulloch's spokesperson Ed Magee confirmed to CNN. In addition to his father, McCulloch's brother, an uncle and a cousin all served with the St. Louis Police Department, and his mother worked as a clerk at the department, Magee said."
Ah jeez. I am on record, very recent record too, advocating that local D.A.'s should not be investigating local police shootings. Why? Because local prosecutors work with local cops on a daily basis and it is very hard to go from being law enforcement ally to law enforcement adversary and then back again to ally. Typically, in my experience and in Ferguson, the incestuous relationship goes even deeper: the cops investigate their own! So today's brother in blue is tomorrow's suspect in blue.
So why does this seem different to me? My first reaction was and my reaction still is "Nope. Not enough." I guess because this isn't a policy decision, it's personal to Mr. McCulloch. He, it is claimed, and his office, can't be fair. But isn't a personal, "case-by-case" policy fairer than a blanket policy, as I advocate? Isn't that in fact how, like, the law proceeds, case-by-case? It is. Isn't that part of what I have called the law's "modesty," not, or being cautious about, going beyond the case at hand, being very reluctant to, establish broad frigging policy? Yes! Yes, it is! boo-hoo-hoo (The witness is breaking down under cross-examination.) And wouldn't you acknowledge, SIR, that in a case-by-case "policy," THIS one cries out for Mr. McCulloch's removal? Yes! Yes! I confess! I confess! I shot Michael Brown! Wait...
All of that is true, well, not the confession, but that truly is the law, or what the law's aims are but it's not ALL the law. It's true as far as it goes but it doesn't go far enough. The law takes a case-by-case approach to the facts but not as to the applicable law. The "policy" discussion above is really a discussion about the law. We don't make up the law on a case-by-case basis, we have centuries of statutory and common law that guide, usually dictate, the legal principles that govern the outcome. They are "precedent," they provide stare decisis and they are a priori, established ahead of time. That's the law against ex post facto laws, you can't make up a law that never existed before and apply it to some poor Schmo retroactively. You are not kept in the dark on the law, in fact, you are presumed to know the law! Judges don't make up the law when you go to court, they apply what has already been made. Here's another legal nostrum, the law is an organic thing, don't you know? It grows, it mutates, it evolves, it has babies--all to serve the public interest, too late in Johnstown, Pennsylvania's case. The law is process-determinative not result-determinative but the law is not result-insulated. It orders, it regulates, it serves the public interest. You're supposed to get justice out of it. When the public does not believe that it is getting justice, then the law's ability to order and regulate is compromised. The law pays attention to this. There is no law that can or should be passed or changed or evolved in the Missouri case. That would have to come later. Of course the law sets "policy, of course it sets policy, legal policy. Finally, there is the law against making laws specific to an individual. "You, Harris, new law: you, and only you, must now wear your underwear on the outside." Can't do that: equality before the law.
So, "Wait..." above incorporates everything...below the wait. And so I believe my first reaction to the calls for Robert McCulloch's removal was sound. It seems to me to violate the principles behind the ex post facto laws and equality before the law, it is against established precedent, (there is a "policy" in place for removal or recusal) and, in my opinion, it sets bad precedent for future policy. My suggested law that "Thou shalt not investigate one of y'all's own" avoids all those problems. The cops and the D.A. in the next county over investigate Ferguson P.D. homicides and Ferguson will reciprocate whenever y'all have one. But man, it sure does seem as if this is not the "appropriate" case for Robert McCulloch, with his and his family's history. It would not establish bad legal precedent--or any legal precedent at all--for Robert McCulloch to voluntarily recuse himself, to grit his teeth and swallow the insult to his integrity and acknowledge the public interest and just recuse himself. Bet he doesn't need the work.
