Jeffrey Toobin: Win or Don’t Bother?
Richard Sahn
I was appalled by Jeffrey Toobin’s analysis of the decision of the grand jury in the Darren Wilson indictment hearings. Toobin, a legal analyst for CNN is a former prosecutor as well as defense attorney. The reason the DA, Robert McCulloch, did not prosecute Darren Wilson during the hearings was because, Toobin says, he could not have convinced a trial jury that Wilson was guilty beyond a reasonable doubt, even of involuntary manslaughter, the least of the possible charges. What good is an indictment—which is based on probable cause—Toobin would have us believe if there is no or little chance of winning at a trial?
So for Toobin, and who knows how many other extraordinary legal minds, it’s win or don’t bother. The legal proceedings in the wake of Michael Brown’s shooting death were all a game, to be won or lost. For Toobin, a graduate of Harvard College and Harvard Law School, the grand jury investigation was on the level of a good law school exam question where the best possible answer would be: too much conflicting evidence for an indictment of the shooter.
I wonder if Mr. Toobin realizes that he just may have advanced the already open season of late by police and George Zimmerman-vigilante types on black males in America. I wonder if Toobin sees any bias in his own analysis, probably an unconscious bias, that the lives of ghetto black males are simply not worth the effort of the criminal justice system to determine why an unarmed eighteen year old boy was shot seven times. If there is no bias then Toobin is alienated from his own emotions, characteristic of a super rational technocratic personality.
Of course, we never hear from media lawyers like Mr. Toobin that America’s love affair with guns and violence could be part of the problem. His perspective of the Michael Brown shooting is amazingly shortsighted. Given the large size of the media audience he has, I see his analysis of the case as doing much more harm than good.
Probable cause, hence an indictment of Officer Wilson, should have been a no-brainer for a prosecutor and a well-informed grand jury. Mr. McCulloch’s job was to inform the grand jury of the likelihood of a crime, not to convict beyond a reasonable doubt. Everyone agreed, even Wilson, on the facts of the case: an unarmed male was shot seven times with one shot to the head, killing him. Then Brown’s body was left for four hours on the streets of Ferguson, MO before it was scooped up by the police and coroner’s office.
What we are seeing in this critically important event in contemporary America is the triumph of detached rational analysis from the real world, if not just common sense itself. Jeffrey Toobin’s law school education, and maybe Mr. McCulloch’s also, is lacking in what can only be called a humanistic perspective. They both miss the forest through the trees, the forest being the murderous and totally unnecessary taking of a life.
One wonders whether law schools in general overwhelmingly emphasize to students how to win cases regardless of the consequences to the individuals involved or to society in general. I would not feel exactly elated today if I had been one of Jeffrey Toobin’s law school professors, especially if I had recommended him for academic honors. But maybe the fault is in the law school itself or law schools as such.
Richard Sahn is a professor of Sociology and a regular contributor to The Contrary Perspective.
The Contrary Perspective 
It brings me no enjoyment whatsoever to say that I predicted the no indictment outcome of this case. This “prophetic ability” stems simply from my understanding that we live in a still very racist society. Yes, a black man occupies the highest elective office in the land…but only because he is thoroughly committed to upholding the Established Order.
I also know a thing or two about the legal system, having always been on the losing side of the law personally. When attorneys face off in court, The Quest For Truth is absolutely the last thing on their minds. The objective is to best your opponent. I love it when defense attorneys vow that they wouldn’t have undertaken the defense of slimeball Defendant X (a mobster of ill repute for three decades, let’s say) if not honestly convinced of his innocence! It’s hilarious initially, rather sickening after you contemplate it for another five seconds. Win or lose, the attorney pockets a handsome fee.
Returning to the specifics of the Ferguson affair, we see a process that was designed to fail…fail to return an indictment against the killer cop. The talking head legal experts on TV are not known to be radical leftist critics of US society, yet they quickly dissected the prosecutor’s game plan: act more like the cop’s defense attorney. Officer Wilson was well rehearsed to present himself as the victim, the poor little weakling under attack from the 6 foot 4 inch, nearly 300 pound Michael Brown. Unfortunately, we don’t have an objective “eye of god” video/audio record of exactly what transpired between these two that August day. Perhaps the deceased was out of control; perhaps previous encounters with LEOs (Law Enforcement Officers) had inculcated in him a very negative opinion of them. This would be all too representative of conditions in a still institutionally racist society. Be that as it may, I doubt that a physical confrontation between Wilson and Brown was equivalent to a five year old trying to control Hulk Hogan. Was Wilson equipped with no gear that could be deployed in non-lethal manner? Not even a can of Mace?? The tendency of American LEOs, in marked contrast for instance to Britain’s traditional unarmed “bobbies” of a bygone era, is to keep pulling the trigger until the magazine runs dry. The late Phil Ochs embodied this attitude brilliantly in his song “Masculine American Man” with these lyrics: “He shoots first, he shoots later; ‘I am the masculine American man, I kill therefore I am’.”
The most telling sign that this tragedy arose from institutionalized racism is probably the immediate aftermath of the killing. Does Ferguson PD have no legal requirement that an ambulance be summoned after a citizen is shot by a LEO, even if that officer assumes the shots were surely fatal? How is this possible?? Instead of calling for medical aid, the cops put out a call for back-up because they feared the community response to this homicide. Homicide is what we’re looking at here, I don’t care if every LEO in the country yells at me that it was “justified use of lethal force.” We have heard that argument far, far too many times. How many more times must we suffer this insult to human rights and human dignity?
There were serious issues in this case that called for, even demanded, a trial. There was a strong case against Wilson. The prosecutor did not prosecute because he didn’t want to, because he was biased in favor of the defendant. An independent prosecutor should have been appointed, as requested by the victim’s family. The grand jury hearing was a travesty.
In the post, you say, “Probable cause, hence an indictment of Officer Wilson, should have been a no-brainer for a prosecutor and a well-informed grand jury.” I completely agree and am so disgusted with the decision of the jury. I also agree that Jeffrey Toobin’s analysis makes matters worse since he is on CNN and, therefore, seen as an “expert.” Very sad.
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The paper below is heavy reading, but is more important to the USA than most essays on this site. It is worth reading …
Click to access incar.pdf
as a come on — his conclusions:
…evidence shows modest incapacitation effects while defendants are in jail or prison, these short-run gains are offset by long-term increases in post-release criminal behavior. What is particularly concerning is that not only is there a net increase in criminal activity but also a shift towards more serious illegal activity. Former inmates are documented as branching out to new types of crime, especially property (e.g. theft or burglary) and drug-related offenses.