Why Ferguson Fails

August 20, 2014

The media has been on the idea that Ferguson, Mo. is a “war zone.”

Most of the commentary has been on the theme that the police presence there is exemplary of how policing has changed in America. In the past, policing involved patrolling, i.e. knowing the neighborhood and interacting with residents. In the last decade, policing has become increasingly militarized, not only in terms of equipment but more importantly, in terms of attitude.

Police now often have the view that force can manage chaos … force can restore calm. In Ferguson, the premise has been proven wrong. The use of military force in the form of machine guns, armored personnel carriers, and use of chemical agents to harm people has proven to escalate the violence. 

Missouri Governor Nixon said today that he was worried because the police were “stressed.” How about the people they were firing on? How about the people confronted by police pointing machine guns and seeing armored vehicles parked in front of them? Or knowing that police snipers were positioned on their rooftops? Are they stressed? The comments of the governor reveal a bias that is pervasive in the law enforcement community. 

It strikes me that the idea that the use of overwhelming force can calm tensions has been proven so wrong in history that what is happening now is so predictable. Overwhelming force was used against Gandhi in India, and protesters in Selma, Ala. years ago. It didn’t work. Overwhelming force was used in Iraq. It obviously didn’t work.

The only remedy for violence caused by injustice is justice. The only cure for the disease of violence is certainly not overwhelming violence.

What if the protest march in Ferguson last night was led by state police protecting protestors? Do you think the violence would have been worse? This is a time when I think we miss the presence and wisdom of Dr. Martin Luther King Jr.   

Ferguson Grand Jury

August 19, 2014

The decision to put the issue of the homicide of Michael Brown to a St. Louis County grand jury by the prosecutor is a very bad idea. As someone familiar with prosecutors conducting secret grand juries, I can tell you that the results can be easily manipulated by prosecutors. They decide what evidence to present to jurors and when.

There are no adversarial safeguards: no attorneys or any representative of the target of the grand jury is allowed, no checks and balances. The prosecutor, Bob McCulloch, is widely mistrusted by minorities. His father was a police officer killed by a black man, and in over 20 years as a prosecutor is notorious for dismissing virtually every accusation against police officers.

The question in this Grand Jury is WHO is McCulloch’s target? I suspect it will be Michael Brown. If he decides to stack the deck in favor of the killer cop, he will call witnesses that contradict each other, or even selectively call only witnesses who support the police story of events. No one will know what happens or monitor the proceedings to ensure fairness and thoroughness. 

There certainly is enough information to constitute probable cause to arrest the killer, and no grand jury is needed in the first place. We know who pulled the trigger at least eight times, striking his victim six times including two shots to the head. We know the victim was at a distance from the killer and unarmed — he was no threat to the killer. We know that at least three eyewitnesses have nearly identical statements that Mr. Brown was surrendering when shot dead and the forensic evidence supports the statements of those witnesses. If Michael Brown had shot his killer with identical evidence he would already be in jail without bail, if he survived being arrested. 

This is a scary time for justice when someone is killed like this and the killer is allowed to go free. If the grand jury fails to indict the killer, all hell will break loose … and should.  

Police Riot in Ferguson

August 18, 2014

I tend to agree with Rev. Al Sharpton that the situation in Ferguson, Mo. is a defining moment. So much of what is happening there is confronting us with the corrupt underpinnings of our society. It is like finding a leak in your basement after a flood and learning that the entire foundation around it is collapsing (with all apologies to Detroiters with flooded basements).

The fact that being an unarmed black male in public is often a fatal risk was already a poorly kept secret. However, the shooting of Michael Brown has also brought into focus the militarization of the police, and bias of media reporting depending on the race of victims. There are two noteworthy developments in Ferguson that I haven’t heard much discussion on: one bad and one good.

The first issue that strikes me is that there has been virtually no discussion of the fact that the Ferguson police are rioting, and they pose a far greater risk to public safety. Martial law should be declared and the Ferguson police disarmed. The Governor implicitly recognized the fact that the police were out of control when he put the State police in charge, but the fact is that there is still a steady stream of reports about the lawless actions of the police.

This includes numerous false arrests with no arrest reports filed. This allows the arresting officers who are breaking the law to remain unidentified and unprosecuted. Numerous people have been arbitrarily arrested, including members of the media (which is probably the only reason why this is being reported). Other instances of assault and battery are being reported, yet not one police officer has been arrested for the numerous acts of criminality. The headlines only report the actions of residents, but not the ongoing police riot.

The second issue is encouraging in a certain way: the agitation and willingness of the people of Ferguson to take to the streets to protest murder by the police. In an era when very few people take collective actions to effect social change, the willingness of people to continue to protest until justice is done is exactly what we need.

We need to take to the streets because the political process no longer works for ordinary citizens. It is the action of the police which have created the violence in response to peaceful protest, and most of the violence seems to have been perpetrated by the police.

The media love to report on a relatively few instances of looting, but so far, with only one exception, the only people being killed or injured are citizens being assaulted by the police. The restraint being shown by the residents of Ferguson in the face of a lawless police force is amazing.     

Don’t Do Stupid Sh#*

August 15, 2014

“Don’t do stupid sh#*” is the exact quote from President Obama when trying to explain the cautious approach he has taken to foreign policy. Apparently those words of wisdom hit a nerve among a lot of people who have done some pretty stupid sh#* in the past, including Hillary Clinton.

Always the calculating politician, Hillary used the quote out of context to take a cheap shot at the President at the worse possible time. Just as the same war mongers who started the last Iraq war (and whose criminal neglect created the chaos that we are dealing with today) are calling for another war, Hillary gives them indirect support with her criticisms.

The former senator (who pushed for the Iraq war) was probably trying to make an attempt to distance herself from an unpopular President who is left with nothing but Sophie’s Choices in Iraq. It came across to me as an angry, defensive reaction to a mistake she made. It is not the first time she has reacted angrily to being confronted with her mistakes.

This is probably the one most troubling character defects of Hillary, a false pride. As many mistakes that President Obama has made in foreign policy, he has at least admitted the mistakes and shown saintly patience towards his critics. One had to wonder if when he got his hug from Hillary, he didn’t whisper in her ear “stop doing stupid sh#*.”   

After the Deluge

August 13, 2014

It was amusing, if not frustrating, to see Gov. Snyder boarding a helicopter to view the faux-Katrina like flooding if the Detroit Metro area. I had to wonder if Gov. Nerd was contemplating his repeated failures to get his fellow Republicans to fund infrastructure projects as he flew over flooded highways, streets and homes.

In fairness, nothing could have prevented most of the flooding after the record rainfall. However, it is also true that the flooding will accelerate the damage to the already disintegrating roads and crumbling bridges. Obscured by the flooding was the collapse of a major water main in Bay County, resulting in 5 million gallons per day being lost, and several other significant infrastructure failures in the state.

Gov. Snyder understands the problem with Michigan’s infrastructure, and the need to get some major projects started to attract businesses (and jobs) to the state. The problem is that the Republican Party as a whole has decided to put political interests ahead of the citizens of the state. Lansing Republicans do not want infrastructure projects started with the jobs being created in an election year.

Tea baggers simply don’t want any government, let alone government projects. I don’t know what the Nerd can do when his own party refuses to follow his lead and do what is right for Michigan, except call out the worse GOP offenders in the media in the hope that others will be shamed into doing what is right … assuming that they have any capacity for shame left.   

Back to the Future in Iraq

August 12, 2014

We have bombed/invaded or otherwise initiated violent actions in Iraq 17 times in the last 24 years, starting with funding the coup that installed Saddam Hussein as dictator. This is hardly a record number of violent actions, especially compared to the ones we have committed in Latin America, but the scale of carnage is becoming worthy of historic note.

Now, President Obama is about to metaphorically ski down the Iraqi slopes again, claiming to be only doing the minimum to prevent genocide. On one side are the neo-con chicken-hawks who created the disaster we are now dealing with, arguing for another invasion. On the other side are the neo-isolationists who mid-wived the ascent of ISIS (ISIL), arguing for ignoring reality. It is remarkable that there seems to be no one anywhere in a policy making position who acknowledges the hopeless reality that is Iraq and the wider conflicts in the Middle East.

Dick Cheney, possibly the most celebrated war criminal at large, recently admitted that Bush-Cheney knew that social chaos would result when they overthrew Saddam Hussein. This is a remarkable comment, given their absolute failure to plan to preserve social order after the invasion and the profoundly ignorant policies that nurtured the rise of violent chaos. It is a crime of historic proportions, and we are only beginning to pay the price that over a million dead Iraqis have already experienced.

The entire Middle East is an artifact of European colonialism that created artificial countries with politically defined boundaries. The social reality of that area for millennia has been tribalism, not nationalism. The defining identity of people there is their tribe or their sect. The Caliphates briefly united the area under Islam, but the conversion never took and Islam is now as divisive a force as tribalism. Even Israel’s veneer of democracy is paper thin worn by the very reason of its existence: Chosen People in their Chosen Land.  The entire region is the tar pit of democracies.

Historically, only dictatorships have kept the area’s violent nature in check. There isn’t any proven political movement that is their salvation, and every military action we undertake virtually ensures the need for future violence. These people hold blood grudges for centuries. There doesn’t even appear to be any economic salvation either. In our country, economic opportunities have helped transformed past divisions somewhat. We may still hate “those people,” but if we can make money from them, well then welcome! This is not the case in the Middle East, where, even on those rare occasions of economic prosperity, the tribal animus continues unabated.

It seems the best we can do is start to play the intransigent divisions to our advantage: paying them off to kill our enemies (a strategy that worked to end the Sunni insurgence after the invasion), or at least not come after us. A friend of mine has two sons who served in Iraq and Afghanistan and they both recount the same lesson: “They shoot at each other all day long until the Marines come along. Then they both shoot at the Marines until we are gone and go back to killing each other again.”

That is the only lesson we need to remember and base our policy on that.

On Being Black in America, Part 2

August 11, 2014

As a white man who is the father of two sons of color, I am at a loss on one of the most important parenting tasks for them: how to keep them safe from being killed by the police or security guards.

The need for early training in this safety issue is understood by every African-American parent in this country, but it is a different reality for white parents. African-American parents seldom talk about this awful, additional burden of parenting. It’s almost as though it a shameful task, though I don’t think the shame is theirs.

Lately, I have been trying to learn what to do, because the reality of the need is too profound for any sense of denial. The very public homicides of Eric Garner, John Crawford and Michael Brown have made it impossible to ignore the reality that simply being a black male in public is dangerous.

In my denial, I thought that being the sons of attorney Geoffrey Fieger, attending the best private schools and living in the most affluent neighborhood in Michigan would somehow insulate them. I know better now, and I am feeling the burden of talking with them about something that embarrasses me, and training them on a survival skill I never had to acquire.

This is some of what I have learned I need to tell them and train them on:

1. Never run in public settings such as a store or mall.

2. Never walk with your hands in your pockets while in public.

3. When entering an unfamiliar room in a hotel or house, always knock first and announce your presence.

4. Whenever stopped by the police, keep your hands raised (or at least easily visible), do not move quickly, do not turn your back to them unless commanded to do so.

5. Try to avoid walking in groups of three or more friends who are all black in unfamiliar areas.

6. Never, ever express your anger at the police or security guard no matter how they treat you.

7. Avoid driving through or shopping in predominately white neighborhoods, but if you have to, be focused on getting in and out. Do not “window shop” or linger. Avoid eye contact with police or security guards. Be prepared to be stopped by the police or security guards. Have your ID ready and in your front pockets (always keep your hands visible).

8. Do not resist arrest or try to defend yourself, even if innocent of any crime. Loudly announce that you are not armed, not resisting.

9. Do not approach unfamiliar white people on the street unless they approach you first.

These are a few of the lessons I am told are necessary for my sons to learn. It makes me feel ashamed and angry.

On Being Black in America, Part 1

August 10, 2014

This past week bore loud witness to one of the most disturbing and ignored aspects of American society: the mortal risk of being a black male in public. A recent study estimated that a black male is shot dead by police or security guards every 28 hours. Many of these victims of homicide will not be guilty of any crime, and unarmed, although virtually every killer will be released claiming they thought their victim was committing a crime and thought they were armed. Many of these homicides are committed in broad daylight in public settings with no criminal prosecutions resulting.

Eric Garner was choked to death on a street in New York City by the police. He was pleading with the officers killing him that he couldn’t breathe. Police later said that he was detained originally because he allegedly selling “loose cigarettes.”

None of the officers have been charged with a murder clearly captured on video. John Crawford was shopping at a Walmart in a predominately white suburb in Ohio, when he made the mistake of picking up a toy gun to buy for a nephew. On seeing a young black man talking on a cell phone and carrying a toy gun, alarmed Ohioans called security and the police. As Mr. Crawford was pleading the toy gun was not real and with his arms up, he was shot dead.

None of the guards or police have been charged. They claim he was not being “compliant” with their commands. The circumstance surrounding the homicide of Michael Brown are still unclear but suspiciously similar to the script. Mr. Brown and a friend were walking down a street when they were detained by an officer who told them to get on the sidewalk and produce IDs. One thing we do know is that he was shot at least several times as he stood holding his hands in the air. The police tell a different story.

They claim after the officer “politely” asked Brown and his friend to get on the sidewalk and wait, Brown charged the police vehicle, began beating the officer and attempted to grab his gun. Why Brown, a young man bound for college would suddenly become a crazed police killer is only one of the absurd questions being investigated by the police, as the officer who killed an unarmed man who was standing still with his arms raised is typical of these killings by the police. These investigations always involve substantiating the claims of the officer that the victim was armed, committing a crime and threatened their life.

Being stopped for no probable cause is an everyday occurrence for black men, and their socio-economic class is no exemption. I speak with African-American attorneys, doctors and other professionals who can all share incidents of police harassment. When I was younger, simply crossing 8 Mile Road as a black man was reason enough to be detained. “Driving while Black” is another well-known cause for harassment. If it’s hard for me as a white man to understand why this doesn’t create a rage, all I need to do is remember their reality: that even the most righteous anger can result in being shot dead.

This is a reality that white America won’t listen to. Martin Luther King once said that “riots were the language of those not being heard.” Eric Garner, John Crawford and Michael Brown will never be heard from again, but at least some people are speaking for them, and thousands like them.

Supreme Ruling

August 9, 2014

Just months before members of the Michigan Supreme Court are up for re-election, the Supreme Court issued a ruling that provided corporations a billion dollar bonanza. The 4-3 ruling on the application of the Corporate Tax Rule will result in at least a $1 billion refund to corporations doing business in Michigan, at a critical cost to Michigan citizens.

Not that the ruling should be considered a quid-pro-quo bribe. That is almost always impossible to prove without one of the guilty parties admitting it. Rather it was more like a wink and timely gift to their major money contributors to re-election. Their record of rulings speaks for itself: Corporations win virtually every case that comes before them (90% rulings in favor of corporate interests).

The contributions also speak for themselves: the vast amounts of money contributed by corporate representatives such as the Michigan Chamber of Commerce to re-elect the same Republican activist judges.

Everyone in the legal profession knows this reality: there is a bias against individual plaintiffs in favor of corporate defendants in the Michigan courts. The cases we take are affected by this realization. Even jury verdicts against corporations are never considered sacrosanct, as they have in the past and in other States. It’s just that seldom has a ruling that so profoundly hurts the entire State of Michigan been timed so suspiciously as this. It’s seldom been so apparent that the bent of this Supreme Court is pro-corporation even if it means betraying their political base.

Maybe it will be enough for Republican Gov. Snyder to begin to appoint judges that can restore balance and integrity to the courts.


What I Do

August 4, 2014

For decades now a coalition of business interests have conducted a campaign to belittle the role of attorneys in our society. In fact, if you believe the common stereotype, lawyers are ruining the world.

I come across this attitude a lot when socializing, in the form of jokes or the occasional hostile comment. A lot of people adopt this attitude … until they need help, and that’s the point of this blog: trial attorneys are the anti-heroes of our society.

Maybe cast in a role as troublemakers, we are the ones who resolve conflicts before they spill over into violence or anarchy, oppression or repression. Without a civil justice system as a rampart, society would quickly degenerate into violent anarchy, and trial lawyers are the ones who walk those ramparts.

Without trial lawyers, the power of government would go unchecked into totalitarianism, corporations would be free to justify any behavior. Remember, it wasn’t a government agency or reporter who exposed the GM ignition danger. It was a trial attorney, doing what we do: fighting for clients, mining the truth, taking on the powerful. It might sound cliché, but it is true far, far more often than not.

I don’t consider myself a troublemaker, but I plead guilty to being an agitator. I consider it to be my duty to effect social change toward a more just society. It is my job to find and correct injustice. I don’t chase ambulances: I am the ambulance. Although I would rather have the public recognize my fellow trial lawyers as the heroes they are, it is enough for me to be a hero to my clients, and a thorn in the side of the powerful.