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Thu Nov 27, 2014, 04:11 PM

Lawrence O'Donnell uncovers shocking prosecutorial misconduct. (Wilson grand jury.)

Last edited Thu Nov 27, 2014, 07:41 PM - Edit history (1)

To call this a mistake strains credulity. Robert McCullough, Sheila Whirley and Kathi Alizadeh should be disbarred.

http://www.msnbc.com/the-last-word/watch/shocking-mistake-in-darren-wilson-grand-jury-364273731666

YouTube link:


115 replies, 25806 views

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Reply Lawrence O'Donnell uncovers shocking prosecutorial misconduct. (Wilson grand jury.) (Original post)
20score Nov 2014 OP
shenmue Nov 2014 #1
drray23 Nov 2014 #2
marym625 Nov 2014 #44
marym625 Nov 2014 #55
still_one Nov 2014 #3
LawDeeDah Nov 2014 #4
SunSeeker Nov 2014 #14
Judi Lynn Nov 2014 #22
valerief Nov 2014 #34
Wella Nov 2014 #5
20score Nov 2014 #7
Cha Nov 2014 #15
20score Nov 2014 #18
KoKo Nov 2014 #60
Kingofalldems Nov 2014 #6
Shrike47 Nov 2014 #8
dixiegrrrrl Nov 2014 #13
toddwv Nov 2014 #46
WinkyDink Nov 2014 #50
billhicks76 Nov 2014 #85
calimary Nov 2014 #114
marym625 Nov 2014 #77
Mike Niendorff Nov 2014 #9
enough Nov 2014 #10
samsingh Nov 2014 #11
BrotherIvan Nov 2014 #12
valerief Nov 2014 #35
SunSeeker Nov 2014 #16
Locrian Nov 2014 #17
morningfog Nov 2014 #19
woolldog Nov 2014 #49
marym625 Nov 2014 #57
Number23 Nov 2014 #20
SidneyR Nov 2014 #21
BrotherIvan Nov 2014 #53
lovemydog Nov 2014 #102
JonLP24 Nov 2014 #23
strategery blunder Nov 2014 #29
bettyellen Nov 2014 #32
ReRe Nov 2014 #36
JonLP24 Nov 2014 #37
marym625 Nov 2014 #61
JonLP24 Nov 2014 #65
marym625 Nov 2014 #67
JonLP24 Nov 2014 #69
marym625 Nov 2014 #71
JonLP24 Nov 2014 #72
marym625 Nov 2014 #75
JonLP24 Nov 2014 #86
marym625 Nov 2014 #87
JonLP24 Nov 2014 #88
marym625 Nov 2014 #89
marym625 Nov 2014 #91
JonLP24 Nov 2014 #93
marym625 Nov 2014 #95
JonLP24 Nov 2014 #96
marym625 Nov 2014 #98
Jim Lane Nov 2014 #104
marym625 Nov 2014 #108
marym625 Nov 2014 #111
marym625 Nov 2014 #52
boston bean Nov 2014 #63
marym625 Nov 2014 #64
WinkyDink Nov 2014 #56
heaven05 Nov 2014 #24
icymist Nov 2014 #25
LineReply +
underpants Nov 2014 #26
Suich Nov 2014 #27
20score Nov 2014 #43
Cha Nov 2014 #28
20score Nov 2014 #42
Enthusiast Nov 2014 #30
H2O Man Nov 2014 #31
List left Nov 2014 #33
ReRe Nov 2014 #38
davidn3600 Nov 2014 #39
20score Nov 2014 #41
passiveporcupine Nov 2014 #40
marym625 Nov 2014 #45
Bjorn Against Nov 2014 #51
BrotherIvan Nov 2014 #54
marym625 Nov 2014 #66
eppur_se_muova Nov 2014 #74
marym625 Nov 2014 #76
azmom Nov 2014 #106
WinkyDink Nov 2014 #59
marym625 Nov 2014 #47
The Wizard Nov 2014 #48
WinkyDink Nov 2014 #62
BrotherIvan Nov 2014 #58
shanti Nov 2014 #68
loyalsister Nov 2014 #70
KingCharlemagne Nov 2014 #73
nikto Nov 2014 #78
JEB Nov 2014 #79
LawDeeDah Nov 2014 #80
Thespian2 Nov 2014 #81
sadoldgirl Nov 2014 #82
lonestarnot Nov 2014 #83
Takket Nov 2014 #84
Overseas Nov 2014 #90
Cha Nov 2014 #92
Jack Rabbit Nov 2014 #94
Iwillnevergiveup Nov 2014 #97
Lefergus70 Nov 2014 #99
blkmusclmachine Nov 2014 #100
baldguy Nov 2014 #101
blackspade Nov 2014 #103
Gothmog Nov 2014 #105
1StrongBlackMan Nov 2014 #107
cantbeserious Nov 2014 #109
Spazito Nov 2014 #110
SweetieD Nov 2014 #112
INdemo Nov 2014 #113
uponit7771 Dec 2014 #115

Response to 20score (Original post)

Thu Nov 27, 2014, 04:19 PM

1. Yes

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Response to 20score (Original post)

Thu Nov 27, 2014, 04:20 PM

2. i agree

Somebody needs to start a whitehouse petition to get the justice department to investigate prosecutorial misconduct in light of what is being uncovered.

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Response to drray23 (Reply #2)

Thu Nov 27, 2014, 07:52 PM

44. There is one

I will try to find the link.

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Response to drray23 (Reply #2)

Thu Nov 27, 2014, 08:25 PM

55. Sorry not specifically on this

But for federal charges. Here's what is open. The Body Camera one has enough that Obama should reply

http://www.showmeprogress.com/diary/9790/white-house-petitions-ferguson-missouri

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Response to 20score (Original post)

Thu Nov 27, 2014, 04:22 PM

3. It won't happen, but I agree it was gross misconduct, and they should be disbarred

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Response to 20score (Original post)

Thu Nov 27, 2014, 04:26 PM

4. I would love to see Lawrence on MTP as host.

 

Wouldn't he be awesome!

One of the last hold outs on delivering real news, intelligently by doing his homework and investigation -- he doesn't just copy whatever his mostly clown car parroting colleagues do.

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Response to LawDeeDah (Reply #4)

Thu Nov 27, 2014, 05:41 PM

14. +1

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Response to LawDeeDah (Reply #4)

Thu Nov 27, 2014, 06:02 PM

22. He'd treat the position with respect, a true breakthrough. n/t

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Response to LawDeeDah (Reply #4)

Thu Nov 27, 2014, 07:05 PM

34. Hell, yes. It would be watchable then. nt

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Response to 20score (Original post)

Thu Nov 27, 2014, 04:27 PM

5. Video doesn't work for me. What were his allegations?

 

Thanks!

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Response to Wella (Reply #5)

Thu Nov 27, 2014, 04:35 PM

7. The prosecutors supplied the grand jury with a statute that had been ruled unconstitutional

in 1985. The old Missouri law had allowed cops to shoot at someone for the simple act of running away. That is no longer allowed in any state. There's more, but I have to run. Happy Thanksgiving.

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Response to 20score (Reply #7)

Thu Nov 27, 2014, 05:43 PM

15. Thank you, 20score.. Happy Thanksgiving to you!

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Response to Cha (Reply #15)

Thu Nov 27, 2014, 05:50 PM

18. Thank you, Cha! Happy Thanksgiving!

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Response to 20score (Reply #7)

Thu Nov 27, 2014, 08:30 PM

60. Recommend!

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Response to 20score (Original post)

Thu Nov 27, 2014, 04:31 PM

6. Criminal misconduct.

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Response to 20score (Original post)

Thu Nov 27, 2014, 04:37 PM

8. An Asst. D.A. gave grand jury copies of unconstitutional statute OKing shooting fleeing suspects.

The statute was declared ubconstitutional in the 1980's but D.A. gave it to the grand jury as good law right before Wilson testified to them. Under that statute, Wilson would not need to be in fear for his own life before shooting.

This is, indeed, shocking, and deeply offensive to me as a lawyer.

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Response to Shrike47 (Reply #8)

Thu Nov 27, 2014, 05:34 PM

13. Wow.. of the many many mistakes the prosecutor made, that is a huge one.

I am waiting for the lawsuit of violating Brown's civil rights.
And I hope to god his family does not quietly settle behind closed doors as Oscar Grant's family did.

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Response to dixiegrrrrl (Reply #13)

Thu Nov 27, 2014, 08:06 PM

46. "Mistakes"

Can they really be called mistakes if they were intentional?

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Response to dixiegrrrrl (Reply #13)

Thu Nov 27, 2014, 08:15 PM

50. It's a mistake if he thought he could get away with it. But it was intentional to favor Wilson.

 

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Response to WinkyDink (Reply #50)

Thu Nov 27, 2014, 11:11 PM

85. So What Are People Gonna Do About It

 

This Country Is Only Getting Worse. A cops job these days is just to steal drug money.

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Response to billhicks76 (Reply #85)

Fri Nov 28, 2014, 04:17 PM

114. THAT is the key question. EVERYONE should be asking that.

Dreadful. Just frickin' DREADFUL. That monster walks the streets, alive and unpunished. He's assured us all that his conscience is "clear". But then again, that leads me to question whether he has one.

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Response to Shrike47 (Reply #8)

Thu Nov 27, 2014, 09:23 PM

77. Can you weigh in

On sub-thread starting with #37, please?

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Response to 20score (Original post)

Thu Nov 27, 2014, 04:48 PM

9. Disbar them. End of story.

This literally shocks the conscience.

MDN

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Response to 20score (Original post)

Thu Nov 27, 2014, 04:50 PM

10. Truly amazing. Absolutely dishonest. Is there no legal recourse here? (nt)

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Response to 20score (Original post)

Thu Nov 27, 2014, 05:00 PM

11. hope something is done

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Response to 20score (Original post)

Thu Nov 27, 2014, 05:23 PM

12. Absolutely 100% on purpose

This was not a mistake. It was intentional. It shows how intentionally the DA's office did the utmost to make sure there was no indictment. There must be something that can be done because this is criminal.

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Response to BrotherIvan (Reply #12)

Thu Nov 27, 2014, 07:06 PM

35. Bingo!

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Response to 20score (Original post)

Thu Nov 27, 2014, 05:43 PM

16. K & R

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Response to 20score (Original post)

Thu Nov 27, 2014, 05:46 PM

17. W.O.W.

That is stunning in how obvious they were fixing the case.

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Response to 20score (Original post)

Thu Nov 27, 2014, 05:56 PM

19. Yet we have racist and gun humping posters breathlessly defending them.

 

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Response to morningfog (Reply #19)

Thu Nov 27, 2014, 08:15 PM

49. Move along, move along, nothing to see here....

 

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Response to woolldog (Reply #49)

Thu Nov 27, 2014, 08:26 PM

57. Thank you. n/t

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Response to 20score (Original post)

Thu Nov 27, 2014, 05:58 PM

20. Thank you so much for posting this

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:02 PM

21. NULLIFY THIS GRAND JURY FOR IMPROPER PROCEDURE!!! NOW!!! NT

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Response to SidneyR (Reply #21)

Thu Nov 27, 2014, 08:20 PM

53. They don't need to, there is no double jeopardy attached to a grand jury

Just call another one and get a special prosecutor to replace these criminal/corrupt ADAs.

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Response to BrotherIvan (Reply #53)

Fri Nov 28, 2014, 08:14 AM

102. Yes

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:04 PM

23. He leaves out what they mentioned on November 21, 2014

“So, the statute I gave you,” said Assistant Prosecuting Attorney Kathi Alizadeh, “if you want to fold that in half just so that, you know, don't necessarily rely on that because there is a portion of that that doesn't comply with the law.”

The strange moment in the grand jury came last Friday around 3 p.m. as Whirley was explaining to the grand jury the law as it should apply in deciding whether to indict Wilson. According to the transcript of the hearings, this is what transpired:

“Real quick, can I interrupt about something?” interjected Alizadeh. “Previously, in the very beginning of this process, I printed out a statute for you that was, the statute in Missouri for the use of force to affect an arrest.

“So if you all want to get those out. What we have discovered, and we have been going along with this, doing our research, is that the statute in the State of Missouri does not comply with the case law.

“....And so the statute for the use of force to affect an arrest in the state of Missouri does not comply with Missouri Supreme Court, I'm sorry United States Supreme Court cases....

“So the statute I gave you, if you want to fold that in half just so that you know don't necessarily rely on that because there is a portion of that that doesn't comply with the law.

“…I don't want you to get confused and don’t rely on that copy or that print-out of the statute that I've given you a long time ago.”

A grand juror asks, “So we’re to disregard this?”

Alizadehanswers: “It is not entirely incorrect or inaccurate, but there is something in it that’s not correct, ignore it totally.”

When a grand juror asks more questions,

Whirley chimes in, “We don’t want to get into a law class.”

http://news.stlpublicradio.org/post/grand-jury-wrangled-confusing-instructions

On edit - Never mind he does but if they till the jury to disregard that I don't understand the problem.

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Response to JonLP24 (Reply #23)

Thu Nov 27, 2014, 06:38 PM

29. There is a problem: it would confuse a reasonable juror.

Prosecutor: So there's a part of that statute we showed you that doesn't comply with current law, so don't necessarily rely on it...

Juror: So we're to disregard this?

Prosecutor: Well it's not entirely incorrect, just part of it...

*Juror asks for further clarification*

Whirley chimes in, “We don’t want to get into a law class.”

Seriously, WTF? It seems they told the jury to disregard but then not to disregard as a willful effort to muddle the law and confuse the GJ. I do have a problem with that.

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Response to strategery blunder (Reply #29)

Thu Nov 27, 2014, 06:54 PM

32. seems like there was a dog whistle in there for those who prefer "states rights" over federal law

 

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Response to strategery blunder (Reply #29)

Thu Nov 27, 2014, 07:07 PM

36. It reminds me of the Zimmerman trial...

I think that judge also mislead that jury right before their deliberations. I even remember one of jurors saying (after it was all over) that they felt they were bound by law to acquit. Does anyone remember that?

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Response to strategery blunder (Reply #29)

Thu Nov 27, 2014, 07:15 PM

37. I resign myself from the discussion as it appears to be over my level of expertise

but the law probably needs to be changed.

Even though legal experts agree that this subsection of the law has been at odds with the U.S. Constitution for almost three decades, the language is still in state law. In fact, the new criminal code that takes effect in 2017 retains the language.

That is the language that Flanders, Goldman and Sen. Jamilah Nasheed want to change.

Continuing confusion

Even though the legislature had not changed the law, the Missouri Supreme Court adopted a new jury instruction that complies with Garner. It does not allow a police officer to claim he was entitled to shoot an unarmed fleeing felon.

But Flanders and other legal experts think that Garner and the jury instruction don’t solve the problem.

Flanders said the prosecutors in the grand jury actually were wrong to say Garner trumps the law. Garner was the constitutional standard for a civil lawsuit. Missouri does not have to criminalize all police action that is unconstitutional. So, Flanders and other lawyers believe the state law still is in effect.

If Wilson had been indicted using the Garner rule against shooting an unarmed fleeing felon, he could have challenged any conviction by relying on the Missouri law that permits an officer to shoot an unarmed suspect.

(from the same link I posted)

I also tried to find further clarification in how Supreme Court rulings on civil cases apply to criminal proceedings but no luck.

On edit - the law has two parts (actually 3) (a) and (b), they were told to disregard (a)

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Response to JonLP24 (Reply #37)

Thu Nov 27, 2014, 08:31 PM

61. No.

He couldn't if charged on the Garner decision. Many states have laws on the books that are unconstitutional. They are still unconstitutional. They can't be used to prosecute or to defend. Period

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Response to marym625 (Reply #61)

Thu Nov 27, 2014, 08:39 PM

65. You may be correct

But for some reason a Saint Louis University law professor tells it differently and raises an interesting civil to legal question.

That is why I said it is probably over my level of expertise but the law needs to be changed.

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Response to JonLP24 (Reply #65)

Thu Nov 27, 2014, 08:45 PM

67. There is no question I am right

Supreme Court decisions on outweigh any State law. That's law school 101. Hell, even before law school.

What law professor is stating differently? Would love to read that.

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Response to marym625 (Reply #67)

Thu Nov 27, 2014, 08:49 PM

69. Flanders is the Saint Louis law professor

You can read it again

Chad Flanders, a Saint Louis University law professor

<snip>

Flanders said the prosecutors in the grand jury actually were wrong to say Garner trumps the law. Garner was the constitutional standard for a civil lawsuit. Missouri does not have to criminalize all police action that is unconstitutional. So, Flanders and other lawyers believe the state law still is in effect.

If Wilson had been indicted using the Garner rule against shooting an unarmed fleeing felon, he could have challenged any conviction by relying on the Missouri law that permits an officer to shoot an unarmed suspect.

Said Flanders: “If the attorneys had to go out of their way to explain why they shouldn’t be following Missouri law on the books, then we should just change the law. After all, the jurors understandably may have been confused as to why they were being asked to ‘just disregard’ the Missouri law.”

http://news.stlpublicradio.org/post/grand-jury-wrangled-confusing-instructions

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Response to JonLP24 (Reply #69)

Thu Nov 27, 2014, 09:01 PM

71. WOW!

That's frightening. That's so wrong. The case came to the Supreme Court because his father wouldn't let it go (thank goodness for him) but it was the Tennessee Statute that was ruled on.

JUSTICE WHITE delivered the opinion of the Court.

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.



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Response to marym625 (Reply #67)

Thu Nov 27, 2014, 09:02 PM

72. More from him

The Missouri statute says that a police officer can use deadly force in trying to arrest a person they suspect has committed any felony. But in the Garner case, the Supreme Court ruled that using deadly force was unreasonable when it was used in trying to stop a fleeing felon who hadn’t committed a violent felony or who wasn’t dangerous (the facts of Garner involved police shooting at a burglar trying to climb over a fence).“Where the suspect poses no immediate threat to the officer and no threat to others,” the court wrote, “the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”

Missouri’s statute as written allows police officers to use deadly force to arrest someone who is guilty, say, only of forging a check. As a matter of a state criminal prosecution of a police officer, this inconsistency doesn’t matter. There is no requirement that state law fit with the standards for a federal civil rights suit against a police officer, which is what Garner was. If the attorneys supervising the grand jury thought that Garner somehow “overrides” the state statute, they were wrong.

But that doesn’t mean that the lawyers shouldn’t have given the grand jury their revised statement of the law — whatever exactly it was (I haven’t found it in the files given to us, and we may never see it). The Garner standard is the more sensible standard. In fact, the Missouri pattern jury instructions (the instructions judges have to read if a law enforcement officer’s use of force is at issue at trial) already adopt the Garner standard. till, Missouri law stands unchanged.

Of course, it may be that Wilson’s use of deadly force was justified even under the higher, Garner standard. Garner also says that deadly force may be used “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.” What we will be debating (and what we should be debating) is whether when Wilson shot Brown, he was shooting at a violent felon or (to quote another passage from Garner) shooting at an “unarmed, nondangerous suspect.”

http://news.stlpublicradio.org/post/commentary-wilson-case-illustrates-why-we-should-change-missouri-s-use-force-law

Credentials


Professor Chad Flanders joined the SLU LAW faculty in 2009. He teaches and writes in the areas of criminal law, constitutional law, and the philosophy of law.

Prof. Flanders received his doctorate in philosophy from the University of Chicago in 2004 and his law degree from Yale Law School in 2007. After law school, Prof. Flanders served as a law clerk to the Hon. Warren Matthews on the Alaska Supreme Court and the Hon. Michael McConnell on the Tenth Circuit Court of Appeals.

Since arriving at SLU, Prof. Flanders has published more than 20 articles or essays in journals such as the Florida Law Review, the California Law Review, the Missouri Law Review and the Alaska Law Review, and his work on Bush v. Gore has been cited by state and federal courts. He has also written numerous opinion pieces for national and local newspapers, including the Chicago Tribune, the St. Louis Post-Dispatch, and Politico.

In the 2012-2013 academic year Prof. Flanders was a Fulbright Lecturer at Nanjing University, China. During 2013-2014 Flanders was a visiting professor at DePaul University School of Law.
http://www.slu.edu/colleges/law/slulaw/faculty/cflande2

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Response to JonLP24 (Reply #72)

Thu Nov 27, 2014, 09:14 PM

75. This is amazing

Just amazing

Garner does allow for shooting a fleeing suspect if they are a danger to the officer and the public. But that wasn't proven and it wasn't even asked (as someone else pointed out) because they didn't know the law.

But this is amazing. If State law trumped the Constitution, we would be 50 different countries.

What the fuck!

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Response to marym625 (Reply #75)

Thu Nov 27, 2014, 11:58 PM

86. He makes a distinction for civil cases

but I understand what you're saying.

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Response to JonLP24 (Reply #86)

Fri Nov 28, 2014, 12:08 AM

87. But it's about what the police can do

According to the Constitution. Not what they can be sued for.

Just absolutely unbelievable.

Here's an example of what excuses cops have used to enforce unconstitutional laws still on books. But it doesn't stop them being unconstitutional and, therefore, unenforceable

http://www.msnbc.com/melissa-harris-perry/sodomy-laws-may-be-illegal-thats-not

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Response to marym625 (Reply #87)

Fri Nov 28, 2014, 12:14 AM

88. Lawrence v Texas was a criminal case

so the constitutional standard applies to criminal cases.

I'm not sure what led him to believe the constitutional standard for civil cases may not apply to criminal cases but I'm curious what other expert opinions are on that matter.

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Response to JonLP24 (Reply #88)

Fri Nov 28, 2014, 12:56 AM

89. Garner was a civil case

That addressed Constitutional law/rights. The lower court said Mr Garner couldn't sue because of the statute. The statute was found to be Unconstitutional. The statue. It violated the 4th Amendment rights of the suspect, not his dad being able to sue. Because the statue was found unconstitutional, Mr. Garner could sue.

It doesn't matter that it got to the court the way it did. The statute is unconstitutional.

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Response to JonLP24 (Reply #88)

Fri Nov 28, 2014, 01:06 AM

91. Here's a decent abstract on it

Annotation:In 1985 the U.S. Supreme Court ruling in Tennessee v. Garner severely restricted the circumstances under which law enforcement officers may use deadly force to arrest a suspect. In assessing the reasonableness of a deadly force seizure per the fourth amendment, the Court ruled that the need for a police intrusion had to be weighed against its risks, and determined that common law any-fleeing-felon statutes were unconstitutional.



https://www.ncjrs.gov/App/publications/abstract.aspx?ID=141994

The decision wasn't about civil law but civil rights. The police being able to shot someone just because they flee is what was found to be unconstitutional. Not that the dad couldn't sue.

I don't know how else to prove that to you. What that law professor is saying is just plain wrong. Yes, the statute is still on the books but it is unenforceable because it is unconstitutional.

Lawrence O'Donnell, Linda Bloom and Stanley Cohen have all stated this publicly. There are more articles out there that say the same thing. The ABA is going after the DAs office. I can't do anymore to prove this to you

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Response to marym625 (Reply #91)

Fri Nov 28, 2014, 01:32 AM

93. I actually read the entire decision before

During my 4th amendment case reading binge.

I never came across the civil case constitutional standard thing when it comes to statues, I'm sure it would apply on appeals but can't imagine it ever coming to that since a cop defendant would have to appeal and you can see the circumstances required to make that a not likely possibility.

Stanley Cohen is the only attorney out of the 3 so I'd be reading his statements. Also, the ADA going after the DAs office is news to me and Google news isn't coming up with any hints so I'd appreciate a source on that.

It isn't that I'm looking for proof, this is all pretty much over my level expertise and asking Flanders to clarify what he meant as well as asking other law experts that specific question isn't possible for me to really understand why Flanders said that and who is right or wrong.

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Response to JonLP24 (Reply #93)

Fri Nov 28, 2014, 02:01 AM

95. Lisa is an attorney

Lisa Bloom has a thriving practice. She's a civil rights attorney with a degree from Yale. Lawrence O'Donnell, while not an attorney, served as an adviser to the Senate and has a degree from Harvard.

I don't understand what you are saying about civil law and the fourth amendment. It isn't about civil law. It's about Constitutional law. The statute saying cops can shoot a fleeing suspect just because they're fleeing is UNCONSTITUTIONAL. If a cop does that, he broke the law and should be criminally charged. THERE IS NOTHING ABOUT being able to sue. I only brought up Mr Garner because it was his trying to sue that caused the case. The cop was a criminal because he killed the kid Garner. It was against the fourth amendment no matter what Tennessee statute said.

If a cop walks up and bangs you in the head and the State it happens in has a law saying cops can bang random people on the head, it's still against your constitutional rights. If you go to sue the cop and department because you were banged on the head and the civil court says you can't because of the banging on the head statute, you appeal all the way to the Supreme Court of the United States and the decision is that the banging on the head statute is unconstitutional, it isn't unconstitutional just so you can sue. It's unconstitutional. Cops can't just bang people on the head. Any where. Any time.

Flanders is an idiot.

I misspoke. It's the National Bar Association and they're trying to get federal charges filed against Wilson.

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Response to marym625 (Reply #95)

Fri Nov 28, 2014, 02:18 AM

96. I understand what you're saying

You already made yourself clear.

I think I probably misspelled her name or accidentally used a different name because the last search got "physician". Now my Lisa Bloom search comes up with attorney and a picture(which I didn't get last time).

I'm doing a horrible job of articulating where I'm coming, if Flanders is an idiot he is well educated in the area of expertise idiot but since it is unlikely I'll be able to ask him follow up questions and second opinions from other experts mainly in the specific question whether prosecutors were right or wrong in asking jurors to disregard Missouri state law. I agree with him in any case that the law needs to be changed so I'm counting on Missouri state legislatures to their job.

I try to be open minded before a reach a definitive conclusion if that helps to understand what I'm saying.

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Response to JonLP24 (Reply #96)

Fri Nov 28, 2014, 02:35 AM

98. I understand what you are saying

I just don't understand how or why you or he don't understand this is not about the ability to sue. In what way, in what place, does the Garner decision talk about civil cases? How does the statute being unconstitutional not mean that the statute is not unconstitutional? How can anyone think that the decision would mean a person can sue a cop for violating it but that it would legally be OK to violate it? That makes absolutely zero sense. How could someone sue for something that is legal?

If you are on twitter, you can ask the others. They often respond.

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Response to marym625 (Reply #98)

Fri Nov 28, 2014, 10:02 AM

104. It's more complicated than you're recognizing.

 

A statute can be flat-out unconstitutional, or it can unconstitutional as applied in some instances. That it's been held unconstitutional in one context -- when it was asserted as a bar to a civil suit -- doesn't mean that it's unconstitutional in another context -- when the State is deciding what conduct can be the predicate for a criminal case.

Here's a key sentence from Flanders's analysis: "Missouri does not have to criminalize all police action that is unconstitutional."

You ask, "How can anyone think that the decision would mean a person can sue a cop for violating it but that it would legally be OK to violate it?" As the quotation from Flanders illustrates, that's the wrong question. The issue is not "Is it legally OK to violate it," because that's too vague a statement. The issue is, "Can a public official acting in violation of constitutional rights be criminally prosecuted?" The answer is a clear Sometimes.

Here's an example. The school board passes a rule that no blacks are to be hired as teachers. A well-qualified black applicant is rejected and is expressly told by the principal that it's because of race. The applicant sues. The court holds (obviously) that the school board's rule is unconstitutional. That means that it can't be used as a defense in the applicant's lawsuit. BUT does that ruling also mean that the principal and every member of the school board can be convicted of a crime and sent to prison? No, it does not.

In fact, it very frequently happens that actions taken pursuant to an unconstitutional statute are overturned on that basis but that the "perpetrators" (government officials who acted under the statute) don't get indicted. Think of all those city clerks who refused to issue same-sex marriage licenses. Even those who are still refusing, in states where the illegality of their conduct is clear, probably won't do time for it. The worst that will happen is that they'll lose their jobs.

I haven't looked at the Missouri statute in detail. In the abstract, however, I could see an argument along these lines: Certain acts by public employees are unconstitutional, and the victim can bring a civil suit. In some of the most egregious cases (as judged by the Legislature), we will also make the employee's act a crime, so that he or she can be criminally prosecuted. Those egregious cases, however, do not include a clerk's acting in accordance with the Legislature's definition of marriage, even if it's been held unconstitutional; and those egregious cases also don't include a police officer using deadly force under circumstances permitted by the Legislature, even if that statute has been held unconstitutional.

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Response to Jim Lane (Reply #104)

Fri Nov 28, 2014, 12:15 PM

108. First, thank you

Second, absolutely no doubt I am over simplifying.

However, in your scenario you have the harmed party suing. I agree with your clerk and school scenarios. I don't agree Wilson could sue if he had been charged under the Garner decision. I know he could try. But that doesn't make the statute legal. Unless I misunderstood Flanders, he is saying that the MO statute does trump Constitutional law, the Garner decision. And that just isn't the case. Whether or not MO leaves an illegal law on the books, the law is illegal. The Garner decision and the 4th Amendment trump it.

There are multiple parts to the statute and only one part in question. But the part that states a police officer can shoot a fleeing suspect just because they're fleeing is illegal. The fact the ADA finally told the jurors, in as convoluted language as she could possibly muster, to disregard the MO statue because it is "incorrect" shows they know it's illegal.

I am grateful for your reply. I am far from a Constitutional expert. But I am not completely without training in law. From everything I have read, the experts that have weighed in and the case law I have seen on this very question, Flanders is wrong about this.

I am not disputing you, I don't think. If I am reading you correctly, on this particular issue, you haven't agreed or disagreed with Flanders, correct?

Just like in Louisiana, although the cops arrested people under an illegal sodomy law, those people were never prosecuted and can sue the cops and department. Doesn't mean that the cops will necessarily be fired or held criminally responsible but they can and should be.

I do understand that a statute being found unconstitutional doesn't automatically make someone that followed it a criminal (unlike what we did in Nuremberg) but after the fact, when a law has been known to be illegal and police forces across the country have changed their training, including in MO, it is criminal to follow the illegal, unconstitutional, statute. A statute that's been illegal since before Wilson was born.

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Response to Jim Lane (Reply #104)

Fri Nov 28, 2014, 12:55 PM

111. I just went back and read

What Flanders said again. He said that Garner does not trump MO law. Which is what I have been arguing against, though I know not well. It just isn't true. That would be like saying Brown or Love don't trump States law just because a State may not have ever removed their racist laws.

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Response to JonLP24 (Reply #23)

Thu Nov 27, 2014, 08:19 PM

52. Because they don't.

And just like mistrials happen when something is stated incorrectly or shared that isn't allowed, you can't unring the bell. They heard Wilson's testimony believing an unconstitutional law ruled. It was weeks later the half hearted, never explained why it is incorrect, "just fold it in half" bullshit was stated. They long ago had it in their minds he had the right to shoot a fleeing suspect.

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Response to marym625 (Reply #52)

Thu Nov 27, 2014, 08:33 PM

63. Agree. The grand jury's questions to Wilson may have been thwarted

and/or changed due to the erroneous law provided to them.

In other words, they were prevented from asking him questions they might have asked because they were given a law that seemed to have cleared the asshole.

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Response to boston bean (Reply #63)

Thu Nov 27, 2014, 08:37 PM

64. The whole dawn thing stinks

Nothing right about this. Nothing

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Response to JonLP24 (Reply #23)

Thu Nov 27, 2014, 08:26 PM

56. The Asst P.A. used DELIBERATELY BAD GRAMMAR to CONFUSE the GJ.

 

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:20 PM

24. Hey while the statute

 

was told to the jury to be not applicable, there are many other missteps to let me know that lynching in amerikka is still accepted as business as usual Get real. This was an unarmed black "demon" shot by a white demon hunter and never shall he suffer any negative legal consequence for that and that act of murder has made him rich to boot. Amerikkka, ya got to luv it...

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:22 PM

25. Wouldn't this be obstruction of justice?

Aiding and abetting in a murder?

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:24 PM

26. +

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:34 PM

27. Yup!

Happy Thanksgiving, John!!!

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Response to Suich (Reply #27)

Thu Nov 27, 2014, 07:43 PM

43. Happy Thanksgiving to you too, my friend!

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:35 PM

28. Here it is on youtube, 20score.. if you want to put it in your OP..

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Response to Cha (Reply #28)

Thu Nov 27, 2014, 07:42 PM

42. Thank you! I couldn't find it earlier.

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:45 PM

30. K&R! This post should have hundreds of recommendations!

They still believe in State's Rights in Missouri.

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Response to 20score (Original post)

Thu Nov 27, 2014, 06:49 PM

31. Thank you for this.

Way recommended.

If there is one thing we need to know about this grand jury's activities, this is certainly it. It shows the DA's office purposefully mislead them -- by lying.

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Response to 20score (Original post)

Thu Nov 27, 2014, 07:02 PM

33. Kick nt

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Response to 20score (Original post)

Thu Nov 27, 2014, 07:15 PM

38. Surely DOJ knows about this...

... so WHY has AG Holder not stepped in yet to say "Just wait a minute, PA McCullough and Assts!"

All I hear are crickets. The silence is deafening!

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Response to 20score (Original post)

Thu Nov 27, 2014, 07:21 PM

39. I dont think you can punish a prosecutor for misconduct because he got a no true bill

 

The US Constitution does not assure victims of crime due process, only those accused of a crime have that right. Civil rights violations? Sure...but those charges are up to the federal government and have nothing to do with McColloch.

If someone is accused of a crime and the prosecutor decides they don't want to pursue charges, that's not illegal. Our constitution and our laws are designed to punish prosecutors when they perform malicious prosecutions for which they have no evidence for (example: Duke Lacrosse case). The laws are not designed to punish prosecutors for failure to pursue a case. Cases get dropped all the time. This is called "prosecutorial discretion."

Unless there is a conflict of interest concerning McColloch, I'm not sure anything can be done. What recourse do people have when their prosecutor is not doing their job or doing it poorly? You vote them out. They are elected every 4 years in Missouri. Unfortunately you will have to wait a while. The voters of St. Louis County re-elected McColloch to his seventh term 4 days before Michael Brown was shot.

Our system of justice is far more concerned about people being wrongfully convicted than it is about victims not getting justice.

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Response to davidn3600 (Reply #39)

Thu Nov 27, 2014, 07:38 PM

41. Nevertheless, prosecutors are still subject to the Rules of Professional Conduct and can

Still be disbarred.
Rule 8.4: Misconduct:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
Like many things in law there is some subjectivity involved, but I believe it wouldn’t be too hard to make the case for disbarment.

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Response to 20score (Original post)

Thu Nov 27, 2014, 07:27 PM

40. I may be wrong, but from what I've read the following is true

http://en.wikipedia.org/wiki/Fleeing_felon_rule

At Common law, the Fleeing Felon Rule permits the use of force, including deadly force, against an individual who is suspected of a felony and is in clear flight.[citation needed] Force may be used by the victim, bystanders, or police officers.[citation needed]


Under U.S. law the fleeing felon rule was limited in 1985 to non-lethal force in most cases by Tennessee v. Garner, 471 U.S. 1. The justices held that deadly force "may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious bodily harm to the officer or others."[2]


A police officer may not seize an unarmed, nondangerous suspect by shooting him dead...however...Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

—Justice Byron White, Tennessee v. Garner


From what I read here in another post (long time ago) I believe is that once Brown attacked Wilson inside his vehicle, he became a felon.

So, I'm not really sure if O'Donnell is correct on this. Or maybe Wiki is incorrect.

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Response to passiveporcupine (Reply #40)

Thu Nov 27, 2014, 08:05 PM

45. no, that's incorrect

Once Michael Brown ran Wilson shooting was against the very Supreme Court Decision you posted. To come to the conclusion Michael Brown was a threat to the safety of others and Wilson is a stretch and would be ripped apart by any decent prosecutor.. There is no proof of that except from Wilson, who we know lied. His story changed in many details from his initial account to his testimony.

Regardless, presenting an unconstitutional law to the jurors is an egregious error. It negates the decision as it was based upon a law that hasn't been legal since 1985.

The Tennessee v Garner made the Missouri statue given to the jurors unconstitutional.

Lawrence O'Donnell knows what he's talking about. Even the American Bar Association is going after the DAs office

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Response to passiveporcupine (Reply #40)

Thu Nov 27, 2014, 08:15 PM

51. There is no proof that Brown attacked Wilson

There is evidence of a struggle, but a struggle does not automatically equal assault. Furthermore there was nothing to suggest that Brown posed a threat to others as he ran. To present a law that was ruled unconstitutional to the Grand Jury is clear prosecutorial misconduct.

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Response to Bjorn Against (Reply #51)

Thu Nov 27, 2014, 08:24 PM

54. +++++

There is no evidence that Mike Brown "attacked" Wilson, only Wilson's fairy tale. Johnson's testimony directly refutes this and is far more plausible given the physical evidence that Wilson had no bruises or wounds. It was cribbed from Zimmerman.

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Response to Bjorn Against (Reply #51)

Thu Nov 27, 2014, 08:42 PM

66. Just what came to my mind when I saw pictures

Of Wilson's "injuries"


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Response to marym625 (Reply #66)

Thu Nov 27, 2014, 09:12 PM

74. Here's what came to my mind ...



http://www.democraticunderground.com/125123199

DW was sitting in the driver's seat, MB supposedly punched him with his right hand -- and he has an injury on the right side of his face ?

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Response to eppur_se_muova (Reply #74)

Thu Nov 27, 2014, 09:15 PM

76. yep. disgusting.

He should be in jail.

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Response to marym625 (Reply #66)

Fri Nov 28, 2014, 10:56 AM

106. LOL

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Response to passiveporcupine (Reply #40)

Thu Nov 27, 2014, 08:29 PM

59. 1. Not Missouri law. 2. "...once Brown attacked Wilson" was not proven in a court of law.

 

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Response to 20score (Original post)

Thu Nov 27, 2014, 08:10 PM

47. Thank you for posting

I am so angry, so disgusted and so sad about all these killings and cops getting away with it that I can't speak about it.

And now the MSM is vilifying Tamir Rice's father and justifying it. People are actually blaming Tamir Rice.


That cop gets off and, in my mind, all bets are off.

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Response to 20score (Original post)

Thu Nov 27, 2014, 08:12 PM

48. Deliberate obfuscation

of the law by an officer of the Court is illegal and the officer of the Court who commits such an act is subject to sanctions. Of course the Republicans like to take everything to the most partisan and corrupt Supreme (really mediocre) Court in history.

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Response to The Wizard (Reply #48)

Thu Nov 27, 2014, 08:31 PM

62. This dame, a lawyer trained in the exquisitely precise use of words, spoke literal nonsense.

 

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Response to 20score (Original post)

Thu Nov 27, 2014, 08:27 PM

58. Kick for visibility!

I hope there is some way to get the DA to recuse himself. He's a Democrat ffs, you would think there could be some way to persuade him.

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Response to 20score (Original post)

Thu Nov 27, 2014, 08:48 PM

68. Kick

a travesty of justice!

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Response to 20score (Original post)

Thu Nov 27, 2014, 08:53 PM

70. Thanks for posting!

When I learned about that, I assumed it was appropriate. I have been arguing a lot about the relevance of Michael Brown's behavior, though.

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Response to 20score (Original post)

Thu Nov 27, 2014, 09:05 PM

73. Thank you for posting. Shared with my social network and Socialist and

 

Communist comrades.

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Response to 20score (Original post)

Thu Nov 27, 2014, 09:27 PM

78. I believe the use of that archaic law...

 

Was officially authorized by
The Baby Jesus.




















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Response to 20score (Original post)

Thu Nov 27, 2014, 09:27 PM

79. K&R

 

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Response to 20score (Original post)

Thu Nov 27, 2014, 09:31 PM

80. I just marked a whole bunch of Lawrence's shows from youtube for my tv.

 

I am going to binge.

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Response to 20score (Original post)

Thu Nov 27, 2014, 09:43 PM

81. K & R +++

The so-called Assistant DA should be fired and disbarred, along with her boss.

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Response to 20score (Original post)

Thu Nov 27, 2014, 09:51 PM

82. I saw the show,

but - while infuriated - saw the problem with it too. They can always claim
that they gave the wrong statute in the beginning, they corrected that
mistake before the jurors made their decision.

"Sorry, we forgot 1985, but seee? we rectified it just in time.
No harm done really."

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Response to 20score (Original post)

Thu Nov 27, 2014, 10:07 PM

83. Hmmmmf. Hope that mother fucking murderer was worth the money you spent for law school and any

 

monetary gain you may have seen as a result of that career, because you fuckers are done. Hasta la bye bye murdering cop and malpracticing fuckers of justice. Constitution coming for you.

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Response to 20score (Original post)

Thu Nov 27, 2014, 10:37 PM

84. Time for a new grand jury!

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Response to 20score (Original post)

Fri Nov 28, 2014, 01:01 AM

90. K&R. I've seen lots of misconduct identified in this case but missed this one. Outrageous!

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Response to 20score (Original post)

Fri Nov 28, 2014, 01:15 AM

92. "With Prosecutors Like this, Darren Wilson Never Really Needed a Defense Lawyer."! My blood

is boiling!

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Response to 20score (Original post)

Fri Nov 28, 2014, 01:37 AM

94. This, on top of everything else

McCulloch could have said to the GJ on day one: I direct you to not indict Officer Wilson. That might have saved an awful lot of time and money, and gotten just as much justice for Mike Brown.

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Response to 20score (Original post)

Fri Nov 28, 2014, 02:29 AM

97. As usual, Lawrence spells it out

so clearly. But you know what has bothered me the most about this whole tragic killing? How Wilson came off so emotionally flat when Stephahoopalis interviewed him. I kept asking myself, "How would I be affected if I shot someone, even in self-defense?" Believe I would be so traumatized, I wouldn't be able to function. I sure as hell wouldn't be up for a widely watched TV interview. Not one iota of regret was expressed.

Which makes me believe Wilson is coming from the same place as Zimmerman: "So I shot a black kid. So what?"

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Response to 20score (Original post)

Fri Nov 28, 2014, 03:11 AM

99. Why do cops shoot to kill?

Surely Wilson could have disabled the kid with his weapon if he really felt a threat of serious physical harm. Or used pepper spray or whatever. Was he ever challenged on that?

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Response to 20score (Original post)

Fri Nov 28, 2014, 06:02 AM

100. Stinks

 

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Response to 20score (Original post)

Fri Nov 28, 2014, 08:03 AM

101. Makes you wonder - if they make "mistakes" like this in high-profile, highly scrutanized cases

 

What sort of "mistakes" do they make in every-day, run-of-the-mill cases?

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Response to 20score (Original post)

Fri Nov 28, 2014, 09:54 AM

103. Are you fucking kidding me?

Un-fucking believable.

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Response to 20score (Original post)

Fri Nov 28, 2014, 10:51 AM

105. O'Donnell did a great job here

The old law used by the DA was horrible

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Response to 20score (Original post)

Fri Nov 28, 2014, 11:00 AM

107. Posted to for later watching n/t

 

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Response to 20score (Original post)

Fri Nov 28, 2014, 12:32 PM

109. Incompetence Of The Highest Order - Impeach The Prosecutors - Republican Heads Explode

eom

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Response to 20score (Original post)

Fri Nov 28, 2014, 12:50 PM

110. I was watching Lawrence's show when he articulated what had happened and...

was horrified, disgusted and filled with anger. Two days later, I still am, maybe even more so. This travesty of justice cannot be allowed to stand, it cannot.

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Response to 20score (Original post)

Fri Nov 28, 2014, 03:22 PM

112. Its disgusting that the Proscutor's office is going to get away with this.

There is no way this was a "mistake" or "oversight". I know from personal experience, that no attorney is going to pull up a case or statute from nearly 40 years ago and not re-check to make sure it is good law. Plus Lexis/Westlaw/The State Supreme court websites all have the most modern versions of statutes on their sites. This is where modern attorneys print out their information. The only way you would copy/print a 40 year old statute is if you intentionally sought it out.

Personally I needed to look for older versions of statutes, in my own state, and found it to be difficult. I needed see what a statute said in the 50s, to compare it to the modern statute, I was researching. I ended up having to go to our State Legislature's library to get that information.

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Response to 20score (Original post)

Fri Nov 28, 2014, 03:25 PM

113. Many things have been broght to light on many different issues

by Lawrence and others (liberal types) on MSNBC and to the best of my recollection ,nothing has been done or backtracking or cost any politician any censures or any further comments from other news organizations.
However we all know that if it was a Republican Tea Bagger speaking out about some Democratic issue it would be repeated several times again and again. So Lawrence is wasting his time and efforts.
And the hell of it is come January everything gets worse the Koch Bros agenda will be followed to a T. And with the Supreme court loaded with Repukes the average citizen does not stand a chance,
Example Why has the Governor Singleton been released yet when the judge that sentenced him was found to be corrupts??
My point ,nothing happens when the victim is a Democrat or on its the less fortunate person that's been victimized

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Response to 20score (Original post)

Tue Dec 2, 2014, 06:25 AM

115. Why is this not being investigated

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