JULIE KELLY: The Feds’ Nonexistent Case Against Alleged Sicknick Assailants:
The cause of Capitol Police officer Brian Sicknick’s untimely death on January 7 is finally settled, but the prosecution of his alleged attackers rages on.
After months of dishonest accounts about what happened to Sicknick—first that he was bludgeoned to death by “insurrectionists” with a fire extinguisher and then that he died of an allergic reaction to bear spray—the D.C. Medical Examiner’s office confirmed the 42-year-old died of a stroke; the chemical sprayed in his direction during the chaos outside the Capitol on January 6 did not contribute to his death.
The sketchy photographic evidence against Tanios and Khater included in charging documents isn’t the government’s only problem. Law enforcement doesn’t know for certain if they used the spray at all. Under questioning by Tanios’ lawyer last month, FBI Special Agent Riley Palmertree could not confirm that either man pulled the trigger on the bear spray can:
Attorney: Did Khater use the bear spray that day?
Agent: Not that I know of, but that’s for further investigation—the investigation is still going on regarding the bear sprays.
Attorney: OK. So it’s your understanding that Khater used the smaller canister of OC spray with the black handle that was sort of like on a keychain or could be a keychain?
Agent: That’s according to my investigation, which is still going on.
Attorney: You don’t have any reason to believe that the bear spray was deployed that day at all, do you?
Agent: I have the bear spray cans myself and I haven’t submitted them for analysis, so that’s what I would need to do. That’s a very serious thing that I have to be sure on in a scientific way the best I can.
In a separate filing, Julian Khater’s lawyers argued their client and Tanios were sprayed by others in the crowd, perhaps police officers, and never used the bear spray. The government even admitted in its affidavit that Khater at one point yelled out, “they just sprayed me.” Therefore, it’s a strong possibility the officers, including Sicknick who reportedly told family members he was hit by pepper spray during the protest, were sprayed by something other than the bear repellent.
[Do “Black and white people routinely commit crimes at similar rates,” if we focus on violent crime? Is “Black-on-Black crime … a myth”?]
An article by a criminal law professor Thursday in the Columbus Dispatch included this assertion:
The reality is that Black-on-Black crime is a myth, and that Black and white people routinely commit crimes at similar rates, but Black people are overwhelmingly targeted for arrest.
Yet I think this is not the reality, at least as to violent crimes of the sort that are usually labeled “black-on-black” when committed by black criminals against black victims. (Blacks and whites do seem to commit drug possession and drug distribution crimes at relatively similar rates, but in this post I focus on violent crimes.)
Here, then, is the data from the Bureau of Justice Statistics’ Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018, with regard to “rape/sexual assault, robbery, aggravated assault, and simple assault“:
Still, the best data that I know of suggests that
black-on-black violent crime is not a myth;
blacks and whites generally commit violent crimes at substantially disparate rates (and, for homicides, sharply disparate rates); and
as best we can tell, the disparity in arrest rates for violent crimes is pretty close to the disparity in crimes that are committed, and especially crimes that the victims report to the police.
Here is a link to the archive of Andrew Branca’s commentary and analysis of the Derek Chauvin trial
Lots of useful information there, which will somehow be missed by the “news” media.
Material that could easily result in acquittal, and riots if it’s not being widely broadcast in other coverage of the trial.
Lt. Mercil works in the MPD training division in charge of use-of-force training and policy instruction. He was active in that capacity during the period preceding the Floyd events during which Chauvin would have received his department use-of-force training and policy instruction, which is what makes Mercil’s testimony relevant.
Mercil is also a genuine fan of Brazilian Jiu-Jitsu (BJJ), saying (as many practitioners do, in my experience) that he had “fallen in love with the sport.” This was elicited on direct, led by Prosecutor Schleiter, no doubt to buttress Mercil’s credibility, as was the direct testimony of Mercil about his expertise in hand-to-hand force techniques as both a trainer and a street cop, and his mastery of MPD use-of-force policies. Little did Schleiter know how Mercil’s credibility would shortly boomerang on the prosecution.
Schleiter did his usual routine, where he portrayed use of force options as being cast in absolute and binary terms. If A, then B, if X then Y. Any variance of this was either out of MPD policy or at least “untrained by MPD” (an entirely different matter than being outside policy), and hence “wrong-act.”
Schleiter made use of the MPD use of force continuum, and presented it in the most childish and sterile context possible. If at this level of the continuum, officer can do this, but not that, correct. Mercil dutifully answered in the affirmative. But if at that level of the continuum, officer can do that, but not this. Again, yes.
Schleiter would also pose simplified and hypothetical scenarios only minimally representative of what occurred with Floyd and ask if the use of, say, a neck restraint in that hypothetical would be reasonable. Of course, the answer from Mercil, as intended that narrow and specific question, would be, no, unreasonable.
Missing from all of this direct, of course, was any context around the complex dynamics and circumstances that often surround a police use of force event. That Schleiter wants to avoid any such discussion is understandable, because doing so provides an appearance for at least reasonableness, if not outright justification, for Chauvin’s use-of-force decisions and conduct with respect to Floyd.
Another common routine from Schleiter when doing direct on state’s witnesses who have any purported use-of-force expertise is to show them the photo of Chauvin apparently (but perhaps not actually) kneeling on Floyd’s neck and asking, “Is this an MPD trained neck restraint?” Invariably the answer is in the negative.
That makes for a good headline, but in fact it’s not very informative on the actual issues of the case. Why? Because just because a technique may not be an “MPD trained” technique does not make it outside of policy, does not mean it was legally unjustified, and certainly does not mean it contributed to Floyd’s death—which is what the trial is supposed to be all about.
Once again, Schleiter touched on positional asphyxia, and once again I feel obliged to note that this doesn’t really help the state prove Chauvin’s guilt beyond a reasonable doubt in the context of Floyd’s ingestion of a three-fold fatal dose of fentanyl. Certainly, if I had to choose between two situations, one in which I was placed in a prone position while handcuffed for 10 minutes, and another in which I was forced to ingest a three-fold fatal dose of fentanyl, I know which I’d pick, and quickly. There’s simply no reasonable comparison between those two risks to life.
So, the direct of Mercil was really just more of the Schleiter show we’ve already seen with other state’s witnesses. Kind of checking the boxes, but not even all the boxes needed to support the state’s narrative of guilt—and always by only exposing the jury to half the context, which is a dangerous ploy.
Basing your narrative of guilt on only half the context is a dangerous ploy because we, thank God, enjoy an adversarial legal system, and that means the defense gets to pop right up and expose the jury to the other half of the context, the half consistent with a narrative of innocence—and, in this case, they get to do so with your own witness.
And that’s precisely what happened with Mercil, and in a big, big way.
Nelson began by asking questions related to Mercil’s time as a street cop, with a particular emphasis on the tendency of suspects being subject to arrest to come up with all kinds of nonsense about why they shouldn’t be arrested that day.
Dangerous job, being a police officer? Yes. Are people generally unhappy about being arrested? Very rarely are they happy, Mercil answered. Do suspects frequently engage in a wide variety of behaviors to avoid arrest, including fighting, arguing, making excuses? Yes, they do, answered Mercil.
Indeed, when asked if he himself had ever disbelieved a suspect’s claim of a medical emergency as an apparent effort to avoid arrest, Mercil answered that he personally had done so.
All of this, of course, undercuts the part of the prosecution narrative that is relying on Floyd’s purported pleas and excuses about claustrophobia and anxiety and crying out for mama. Perhaps all of that is real—but a reasonable officer must also consider that maybe much of it is simply an effort to avoid arrest.
Nelson also once again put the use of pressure and body weight techniques in a favorable light. The state wants to present Chauvin’s knee in a negative light, as deadly mechanical asphyxiation, or as a “blood choke” as attested to by MMA Williams. In fact, however, the use of pressure and body weight to restrain a suspect was adopted by the MPD because it was a lesser intensity of force than the prior practice of using strikes—either barehanded, or with batons, or even with weighted gloves—to compel compliance. Mercil concurred.
The take home message for the jury is that Chauvin’s knee, far from being a public execution in a public street, was a lesser force than would otherwise have been required.
Whereas Schleiter wants to pretend that all of Chauvin’s use of force and other decisions should have been based solely on the needs and desires of Floyd, Nelson once again had the state’s witness concede that under the MPD critical decision-making model the officer must consider a wide breadth of factors beyond just the suspect, including the officer himself, his partners, any bystanders—especially angry or threatening bystanders.
Schleiter had described use of force in a very static and binary way—once a suspect stops resisting, the officer should immediately stop his use of force, period. But Nelson got Mercil to agree that if that suspect had been forcibly resisting the officer only moments before, that would be a factor weighing in favor of continuing to apply force even after apparent resistance had ceased.
That is, it’s not just what’s happening in the moment that counts, but what happened prior to that moment, as well. (Schleiter pulled this trick again with the last witness of the day, a Jody Stiger from LAPD acting as an expert witness for the state, and I don’t expect it to work out well there, either.)
Additional factors that a reasonable officer would take into account in deciding how much force to apply and for how long included a disparity in size between the officer and the suspect—and as we know, the 6’ 6” 230-pound Floyd was substantially larger than the 5’ 9” 140-pound Chauvin—as well as the circumstance in which a suspect not only fought police, but fought multiple officers—exactly as Floyd did in this instance.
When asked if additional use-of-force factors included if the suspect was believed to be on drugs, and whether being on drugs could give a suspect exceptionally great strength, Mercil agreed to both statements.
When asked explicitly if any of the video of the event showed Chauvin placing Floyd in a “choke hold” (in this context meaning a respiratory choke but the term has been used with careless disregard for accuracy) Mercil was obliged to answer that it did not.
When asked if a carotid choke, or what MPD would refer to as an “unconscious neck restraint” required both of the carotid arteries to be compressed, Mercil answered that it did. So much for MMA expert Williams’ testimony to the contrary.
Further, when asked how quickly unconsciousness occurred when a carotid choke was placed, Mercil answered “less than 10 seconds.” Clearly, then Floyd was not being subject to a carotid choke for the large majority of the 9 minutes or so Chauvin had his knee in place, and likely never during that period.
When asked if Mercil trained officers that a suspect who had become unconscious could regain consciousness, get back into the fight, and perhaps even be more aggressive than previously, Mercil responded that he did.
This, of course, is a rationale for Chauvin maintain his knee across Floyd’s back even after Floyd lost consciousness.
As noted above, Nelson also explored with Mercil whether there were circumstances in which it would be appropriate for an officer to maintain a neck restraint for a substantial period of time, and Mercil conceded that there were.
Sometimes to maintain the neck restraint for however long it took EMS to arrive, asked Nelson? Mercil answered that he, personally, had maintained restraint on suspects for the duration required for EMS to arrive.
To ensure the point: The state’s own use-of-force expert testified on cross that he personally had engaged in use-of-force conduct that the state had been using to demonize Chauvin as an unlawful killer. That’s not a good day for the state.
Nelson also again re-emphasized the reality that the officer involved in a use-of-force event must consider not just the suspect, but also the presence of an angry and growing mob observing what might well look like an ugly use of police force, and Mercil agreed that was the case.
On the issue of providing timely medical care, an issue the state pushes with particular energy, Nelson had Mercil agree that while MPD policy is to provide care as soon as possible, that must take into consideration the safety of the scene, and that the MPD policy actually requires that it first be safe for the officer to provide care before the officer has the duty to provide that care.
Indeed, factors such as whether a suspect had just been fighting with the officers was huge in determining whether an officer could reasonably provide care—especially if that “care” would be chest compressions requiring the suspect to have their handcuffs removed. Mercil answered in the affirmative.
Later, on re-direct, Schleiter would attempt to diminish the damage of this bit of testimony by asking Mercil if bystanders merely taking videos would constitute a reason to not provide care. The answer, of course, was no.
But that merely provided Nelson with the lay-up opportunity on re-cross to ask whether a mob shouting insults and outright threats would constitute such a reason—and that was conduct of the mob in this event—and the answer to that, of course, was yes.
Similarly, Nelson hit back on the state’s emphasis on the whole “recovery position” narrative in the context of hypothetical positional asphyxia. Might there be circumstances that would prevent putting a suspect in a recovery position? Mercil answered that there were.
If that all sounds bad enough for the prosecution, you ain’t seen nothing yet.
It was at this point that Nelson showed Mercil a series of photographs captured from the body worn camera of Officer Lane, and showing Chauvin’s knee on Floyd from the angle down Floyd’s proned body.
Photo 1: Where’s Chauvin’s leg in this image? On Floyd’s neck? Or on his shoulder blades and back. Mercil: Shoulder blades and back.
And in photo 2? Same. Photo 3? Same. Photo 4? Same.
This, of course, fundamentally undercuts the prosecution’s narrative of guilt that it was Chauvin’s knee on Floyd’s neck that killed Floyd.
Are there circumstances like those already discussed where would be appropriate to maintain presence of leg across shoulder blades and back in order to ensure control of the suspect? Yes, there are, Mercil answered. For as long as 10 minutes? It’s possible.
In other words, the use of the restraint can be justified not only to compel compliance of the suspect in the first place, but to ensure that the suspect maintains compliance moving forward—especially given the experience and concern that unconscious suspects can revive and be even more violent than they were prior, even if that restraint is being held in place for as long as 10 minutes. And that’s not just for the safety of the officer, but also for the officer’s partners, for bystanders, and even for the suspect himself.
Just devastating for the state’s narrative, and all of it coming from the state’s own MPD use of force expert.
And there’s more. RTWT.
I haven’t yet been able to identify a single anti-Asian hate crime committed by a Trump supporter, despite the Democrats’ insistence that Trump-loving racists are the main perpetrators. What I did discover, however, was something the media refuses to report. Consistent with the U.S. Bureau of Justice data that was compiled until 2018—Asians are now lumped into the “other” category, a suspicious decision that merits investigation—black males are the main perpetrators of the pandemic’s anti-Asian hate crimes, and there’re videos supporting this claim that the media isn’t going to show you. The media’s problem is that, under the current progressive definition of racism, blacks can’t be racists because, as a group, they have no power. Since reporting that black males are committing race-based violence against another minority group runs counter to this narrative, the media finesses it by not mentioning the race of the assailant if he’s black.
It’s not racist to point out who’s committing these hate crimes—data can’t be racist. Anti-Asian hate crimes were up by about 150 percent in 2020, so it’s a serious problem that needs to be addressed head-on, not danced around. But what we’ll get are more articles like the one Yahoo News ran in February, “Anti-Asian violence has been rampant. Here’s why it’s not always a ’hate crime.’” Suddenly, the media wants to make sure we don’t exaggerate a specific hate crime problem. The authors of the piece say it’s important to use “precise, accurate language in discussing” anti-Asian violence. In other words, use precisely the opposite sort of language progressives use when attributing an incident to “white supremacy.”
James Alan Fox, a criminologist at Northeastern University, maintains a database in collaboration with USA Today and the Associated Press that covers all mass shootings in the United States since 2006. When I asked him to analyze the data around incidents such as the Boulder massacre, he confirmed that about 55 percent of perpetrators in such incidents had been reported as White. (In some cases, race was unreported). Using a different dataset that ran from 1976 to 2019, with more inclusive criteria for inferring race, Fox found that some 64 percent of shooters were White.
But this commits a common statistical fallacy — thinking that if most mass shooters were White, that means that White people must be particularly likely to commit mass shootings. That doesn’t follow. Most Americans are White, so the majority of people doing almost anything will be White if there’s no racial discrepancy.
Let’s dig a little deeper in the numbers. Most mass shootings are committed by adult men, and census data shows that about 67 percent of adult men in the United States are non-Hispanic Whites. So it appears that the number of White men committing these crimes is close to what we’d expect from pure chance, maybe even slightly lower — the opposite of what we’d see if white supremacy culture were at fault.
Of course, that’s not the only evidence of racial gaps here; White attackers do seem less likely to be shot by police. According to Fox, five of the 87 public mass shooting attacks in the database involved White shooters who were killed by police. During that same period, 10 non-White shooters were killed, as were five others whose race was unknown.
Yet that doesn’t mean, as some have suggested, that Whites are more likely to be apprehended alive in these public massacres; apparently, White shooters more often commit suicide before police can get to them. Overall, Whites are both half of those who commit mass shootings and also about half of those who die during their crime.
So hearing that a shooter has been apprehended by police won’t help you guess the shooter’s race. You could do exactly as well by flipping a coin.
Now, I’m not saying that there is no racial aspect at play. Fox notes that media coverage tends to focus more on White shooters — possibly because most violence happens within racial and ethnic groups, not between them. So White shooters tend to have White victims — and to be covered more intensively by the mostly White media. And attacks that get more coverage are easier to remember.
That memorability feeds a psychological distortion known as the “availability heuristic”: when examples people can readily call to mind are assumed to be highly representative of whatever larger phenomenon we’re thinking about. Yet, often, people remember things vividly precisely because the incidents were unrepresentative — especially horrifying or politically charged.
In short, there are indeed subtle racial angles to mass shootings that we might profitably explore. But this particular narrative, which is unfortunately the dominant one, is an analytical dead end. It’s also a harmful racial stereotype for which there is no good evidence.
We won’t advance the cause of racial justice by propagating false stereotypes about any group — even the majority. And we certainly won’t make much progress on mass shootings if we wrongly convince ourselves that an all-too-common national failing, afflicting Americans of all colors and creeds, is mostly the peculiar pathology of a single privileged class.
Since Donald Trump’s share of the Asian-American vote rose from 29% in 2016 to 34% in 2020, the Democrats and their media allies are doing their best to create a sense of racial victimization among Asian-Americans and blame it on Donald Trump.
The media hysterically reports a 150% increase in hate crimes against Asian-Americans during the pandemic. But read the fine print. The actual number of such crimes is minor. New York City had 28, Boston 14 and Los Angeles 15. And the FBI defines hate crimes very broadly to include vandalism and any “criminal offense against a person or propter motivated by an offender’s bias…”
The Biden Justice Department is clearly putting the rights of Asian American applicants below those of African-Americans and other minorities. With the marvelous success-orientation of a great many young Asian-Americans, it is of far greater moment whether their racial heritage will bar their way into top quality schools than whether the President accuses China of starting the pandemic.Dick Morris.com
There are quite a number of people who believe no good comes from private prisons.
Most of us who haven’t been incarcerated have, at least at times, periods when we really, really need the help of a friend or a supportive person in some area of our life. People who’ve been incarcerated and are just out especially need this, and I was especially struck by the parts of this guy’s story that reflected it.
This may be the sound of justice being Crumpled.
The Minneapolis City Council has made a decision to settle a civil lawsuit:
The city of Minneapolis on Friday agreed to pay $27 million to settle a civil lawsuit from George Floyd’s family over the Black man’s death in police custody, as jury selection continued in a former officer’s murder trial.
Council members met privately to discuss the settlement, then returned to public session for a unanimous vote in support of the massive payout. It easily surpassed the $20 million the city approved two years ago to the family of a white woman killed by a police officer.
Floyd family attorney Ben Crump called it the largest pretrial settlement ever for a civil rights claim…
These cases are Crump’s specialty, and lying to the press about them is also his specialty (I’ve written about Crump before, in particular here in connection with the Jacob Blake case, and he was involved in the Trayvon Martin case as well as the Michael Brown case and of course the Floyd case). I don’t know exactly how it works, but I’ve read that lawyers take one-third of settlements, and if so then Crump will net a cool nine million.
[Our incarceration system needs reform: how about reforming it by increasing private prisons instead?]
Yesterday Pres. Biden issued an Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities. The operative bit is simple enough: “The Attorney General shall not renew Department of Justice contracts with privately operated criminal detention facilities, as consistent with applicable law.”
I agree that the incarceration system needs reform. (And not just the incarceration system itself: I would also look at the mass of criminal laws, including drug laws; and the investigation, prosecution, and sentencing processes. But O.K., let’s also look at the incarceration system.) But well-intentioned prison reformers too often blame private prisons for problems that plague incarceration generally. For some, this may relate to a broader skepticism of markets; for some, this may relate to a view that profitmaking (while possibly appropriate elsewhere) is inappropriate for prisons. I believe that, on the contrary, the problems of incarceration aren’t particularly attributable to private prisons, and aren’t generally greater in private prisons than elsewhere; the moral objections are insubstantial; and perhaps those of us who want to reform prisons might consider increasing the use of private prisons…