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Was Trump's Pardon of Joe Arpaio Unconstitutional? Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=15772"><span class="small">Dahlia Lithwick, Slate </span></a>   
Sunday, 17 September 2017 08:29

Lithwick writes: "Sometimes it's easy to believe that the only lawyers trying to hold the Trump administration in check work for Bob Mueller. But keep your eye on the other attorneys who keep popping up in unlikely places."

Donald Trump and Joe Arpaio in Marshalltown, Iowa, on Jan. 26, 2016. (photo: Brian Snyder/Reuters)
Donald Trump and Joe Arpaio in Marshalltown, Iowa, on Jan. 26, 2016. (photo: Brian Snyder/Reuters)


Was Trump's Pardon of Joe Arpaio Unconstitutional?

By Dahlia Lithwick, Slate

17 September 17


A small group of lawyers are fighting to find out.

ometimes it’s easy to believe that the only lawyers trying to hold the Trump administration in check work for Bob Mueller. But keep your eye on the other attorneys who keep popping up in unlikely places. This week, they migrated south to a federal court in Arizona to try to slap back the obscene pardon that Donald Trump recently handed out to one of his vilest cronies.

In July, former Sheriff Joe Arpaio was convicted of criminal contempt for willfully violating a 2011 court injunction barring his Maricopa County officers from stopping Latino drivers solely on the basis of suspicion that they were in the country illegally. In his 24 years as the state’s most powerful local law enforcement officer, Arpaio reigned over a Bermuda Triangle of civil rights violations. He incarcerated suspected “illegals” in a tent city, forcing them to wear pink underwear and live in intolerable weather conditions. His inmates died, gave birth in restraints, and were underfed and humiliated. And Arpaio preened and boasted while leaving hundreds of reported sexual assault cases unresolved.

In defiance of that 2011 court order to stop the racial profiling, Arpaio continued his old practices. When federal Judge Susan Bolton found him guilty of criminal contempt in July, she said, “Not only did [Arpaio] abdicate responsibility, he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.”

Trump pardoned Arpaio on Aug. 25 as he awaited sentencing for his contempt of court, referencing his work “protecting the public from the scourges of crime and illegal immigration.” The pardon wasn’t just a rejection of the civil rights claims of his victims, but a shocking insult to every judge in America who has ever attempted to enforce a court order against someone who believes he answers to nobody. As Joan Biskupic wrote at the time, the American judicial branch has been largely silent in the face of Trump’s latest assault on judicial authority, even as their own power was being undermined.

The courts have hung back. As the Arizona Republic explains, Bolton canceled Arpaio’s sentencing but declined to vacate the conviction altogether, instead ordering Arpaio and Department of Justice prosecutors to file briefs on the matter. This week, federal prosecutors who had won that conviction for criminal contempt against Arpaio switched course and dropped the case against him entirely, claiming Trump’s pardon had resolved the matter.

When the DOJ stepped back, a small army of legal advocates stepped in, filing a raft of briefs seeking to have Bolton reconsider tossing the case, with some arguing that the pardon itself is illegal. This began with an effort spearheaded initially by Ron Fein, the legal director of Free Speech for People, who co-authored a letter last month to the Justice Department asking them not to vacate the conviction.

What followed was an extraordinary series of amicus briefs, filed by various interest groups, arguing that Trump’s pardon is so outside the realm of his legitimate pardon power that it cannot be allowed to stand. One representative filing, submitted by the MacArthur Justice Center at the Northwestern Pritzker School of Law, lays out the essential argument: “The pardon is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”

A group of teachers, human rights lawyers, and legal scholars, in a brief filed by Erwin Chemerinsky, Michael Tigar, and Jane Tigar argues the pardon was unconstitutional as it exceeded the authority granted the president in the Constitution. The brief cites Madison, in Federalist 45, guaranteeing that the Constitution would renounce the “impious doctrine in the Old World, that the people were made for kings, not kings for the people.” Urging that there is a distinction between offenses prosecuted by the sovereign, which may be pardoned, and punishments imposed by courts to protect individual rights, they argue that Arpaio’s victims have a right—rooted in Article III of the Constitution—to have their claims adjudicated, and to receive a remedy enforced by a court. These scholars conclude:

No President till now has proclaimed that a public official who violated the Constitution and flouted court orders was ‘doing his job.’ The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787.

Another group, the Coalition to Preserve Protect and Defend, argues similarly in its amicus brief that the Arpaio pardon must be deemed unconstitutional to preserve the role of the judicial branch. Due process requires courts to enforce their own constitutional rules, they write:

If the President may employ his pardon power to relieve government officers of accountability and risk of penalty for defying injunctions imposed to enforce constitutional rights, that action will permanently impair the courts' authority and ability to protect those inalienable rights. The result would be an executive branch freed from the judicial scrutiny required to assure compliance with the dictates of the Bill of Rights and other constitutional safeguards.

Yet another amicus brief, this one filed by Protect Democracy—a nonprofit founded by former Obama administration alums seeking to curb executive overreach—argues that the pardon “violates the Due Process Clause of the Fifth Amendment.”

Like other prerogatives assigned to the Executive Branch, the pardon power cannot be read to negate other provisions of the Constitution. The President could not, for instance, declare pardons for all white people and only white people who had been or might be convicted of federal gun offenses. That would fail to read the pardon power in harmony with the Equal Protection Clause. Similarly, here, the pardon power in Article II must be read in harmony with the later-enacted Due Process Clause.

Protect Democracy also makes the point that the Arpaio pardon violates core principles of the rule of law, writing that “it sends a signal that public officials, so long as they are allies of the President, need not execute the law at all.”

These parties are all aware that this situation has little legal precedent. They understand that the pardon itself has little historic analogue. They see this as a feature, not a bug. As Protect Democracy puts it, “We are aware of no case in this Court, the Ninth Circuit, or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants.” They contend that the fact that nobody truly understands the boundaries of a constitutionally intolerable pardon allows the parties to argue for that redress in Bolton’s courtroom.

In light of the Sessions Justice Department’s about-face in this years-long litigation, Protect Democracy entered another filing Tuesday morning asking Bolton to appoint a private attorney on behalf of all the amici to argue against vacating Arpaio’s conviction. They contend that the federal rules of criminal procedure call for such an appointment if the executive branch won’t prosecute the case.

On the Arpaio side, a Tuesday evening filing asked Bolton to toss the whole stack of Amicus briefs, based at least partly on the theory that “the filers are groups and/or persons who are outspokenly opposed to the President, or who are anti-law enforcement, and/or who are not specially qualified or interested in the outcome of this case.” Arpaio’s lawyers call Judge Bolton’s contempt finding an “evident mistake,” then brush off the amicus briefs as “a bitter soup that is too hard to swallow, being mixed with one part irrelevant English history, one part political bile, and a broth of ‘Chicken Little syndrome,’ to taste.” This would be a funny line were it not filed on behalf of a man who made it a point of pride that the prisoners in what he called his “concentration camps” weren’t afforded sufficient time to refill their water containers and were given only two meals each day, with Arpaio boasting that the food they ate was rotten and that they spend so little on prisoner food that “it costs more to feed the dogs.”

Arpaio’s lawyers also asked Judge Bolton to reject Protect Democracy’s request for a lawyer to be appointed to replace the Justice Department attorneys who ghosted last week, arguing that “this ‘room’ already has enough lawyers in it, and amici’s arguments have already been briefed to beyond (anyone’s) satisfaction.”

There is certainly an argument to be made that Judge Bolton does not want her courtroom to become the place in which a roomful of lawyers litigate the constitutionality of the president’s pardon power. But as this fleet of lawyers has now carefully articulated, for the founders’ vision of checks and balances to prevail, there needs to be some room somewhere in which the insanity that is Trump law is litigated.

Jennifer Rubin makes the point that these filings are certainly a legitimate forum in which to challenge Trump’s pardon of Arpaio, which she says violates his oath of office by signaling that no friend of the president is bound by the rule of law. As such, these filings form the very spine of an impeachment claim against the president. Rubin adds that these legal pleadings may also sound a warning to any Trump team member facing prosecution: The road to a blanket pardon may not be as smooth as they currently believe.

In case this all seems of limited consequence to Judge Bolton or the rule of law, another filing by Arpaio’s lawyers came in Thursday evening, seeking to deny yet another Amicus brief on behalf of Arpaio civil rights victims. Arpaio’s lawyers now complain that his contempt conviction was for violating court orders in an “ambiguous” area of law about what constitutes “cooperation” with the Department of Homeland Security.

His lawyers here argue for the presumptions of innocence and lenience for Arpaio—presumptions he never afforded his own victims.

A concluding sentence, quoting Fyodor Dostoyevsky, points out that “[t]he degree of civilization in a society can be judged by entering its prisons.” Lawyers for the man whose prisoners died in restraints tells Judge Bolton that “the Court always sets its more powerful example when it follows the law to show mercy and integrity, than when it bucks the law to show pettiness or spite.” That the true victim of injustice here is Joe Arpaio is an argument that can only be advanced in this litigation, at this moment, in this America.

Indicating that she was at least open to considering this, late Thursday Judge Bolton issued a new filing suggesting that she was considering dropping the criminal case against Arpaio but allowing his guilty verdict to stand. She ordered briefing on whether she has the power to vacate the conviction. Citing Nixon v. United States she wrote, “The granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is an executive action that mitigates or sets aside punishment of a crime.” At the very least she will entertain the possibility that vacating Arpaio’s conviction is not required.

The predicate belief of the judicial system is that nothing should be resolved in any but the narrowest possible ways. Drama and grand gestures are anathema. The predicate belief of the Trump administration is that fomenting disruption and chaos be done on the grandest scale. Because who’s going to stop you? No courtroom wants to be the courtroom in which Trump’s upside-down legal worldview is adjudicated. But unless it’s assessed and evaluated someplace, the courts themselves will continue to be a casualty of his actions.

I asked Ian Bassin at Protect Democracy why his group chose this particular room in this moment to litigate this fight. “Joe Arpaio began this saga by trampling on the Bill of Rights and President Trump joined in by stomping on it himself,” he told me. “Thankfully, in America it’s the courts who get the last say on what the Constitution allows.”


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This Judge's Excuses for Acquitting Jason Stockley of Murder Are Pathetic Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=39972"><span class="small">Jeremy Stahl, Slate</span></a>   
Sunday, 17 September 2017 08:27

Stahl writes: "The acquittal on Friday of former St. Louis police officer Jason Stockley of first-degree murder charges in the 2011 shooting death of Anthony Lamar Smith was all too familiar."

Protesters walk along the street as they demonstrate following a not guilty verdict on Friday in St. Louis. (photo: Michael B. Thomas/Getty Images)
Protesters walk along the street as they demonstrate following a not guilty verdict on Friday in St. Louis. (photo: Michael B. Thomas/Getty Images)


This Judge's Excuses for Acquitting Jason Stockley of Murder Are Pathetic

By Jeremy Stahl, Slate

17 September 17

 

he acquittal on Friday of former St. Louis police officer Jason Stockley of first-degree murder charges in the 2011 shooting death of Anthony Lamar Smith was all too familiar. Like in other cases, the local community took to the streets in mass protests soon after a white officer was found not guilty of murdering a black motorist. And like in other cases, it showed how difficult it is to hold police accountable in shooting deaths of black men, no matter what the evidence.

It was unusual in one big way, though. Because the verdict was decided by a judge after Stockley waived his right to a jury trial, the public got a rare insight into the thinking that goes into letting a cop go free despite stacks of evidence of wrongdoing. In Judge Timothy J. Wilson’s 30-page ruling you can see the mental gymnastics that went into acquitting a man who said to his partner of Smith, “we’re killing this motherfucker, don’t you know,” minutes before killing him.

There are many embarrassing parts of this verdict. Let’s start, though, with the particularly shameful portion that seeks to vindicate Stockley for this audio-recorded statement of apparent premeditation. During his own testimony, Stockley stated that he couldn’t remember making the “we’re killing this motherfucker” remark, but justified it by saying that “during a vehicle pursuit, there are many things that are said.” He added that “it’s hard for me to elaborate even what the context was, because I don’t even know.”

This dissembling answer was apparently enough for the judge to discount this clear statement of intent. Here’s what Wilson wrote:

People say all kinds of things in the heat of the moment or while in stressful situations, and whether Stockley’s statement that “we’re killing this motherfucker,” which can be ambiguous depending on the context, constituted a real threat of action or was a means of releasing tension has to be judged by his subsequent conduct. The court does not believe Stockley’s conduct immediately following the end of the pursuit is consistent with the conduct of a person intentionally killing another person unlawfully.

Stockley’s conduct immediately after making that statement was to instruct his partner to ram Smith’s vehicle, approach Smith's car, and almost immediately fire five shots into Smith’s body, including one that forensic analysts described as a “kill shot” likely fired within six inches of Smith. In his ruling, Wilson characterized this as a long period of time and accepted as fact the defense's argument that all five shots were fired at once (the prosecution argued that a final "kill shot" was fired a bit after the first four):

It was not until fifteen seconds after Stockley arrived at the driver’s side door, that he unholstered his service revolver and fired several shots in succession.

As damning as it was, Stockley’s statement was not the only piece of evidence against him. Prosecutors alleged that he planted a gun that was found in Smith’s car. The evidence for this is that his DNA was found on the gun while Smith’s was not, he can be seen rifling through a bag in his police vehicle after the shooting, and he was seen returning to search Smith’s car before the gun appeared to him. Stockley testified that his partner warned him that Smith—who had twice rammed the police vehicle and clipped Stockley with his car as he fled when the officers first approached him after what they suspected was a drug buy—had a gun. In his ruling, Judge Wilson took this testimony by the defendant as fact:

Stockley had been warned by [his partner Brian] Bianchi that Smith had a gun.

One of Stockley’s fellow officers at the time who arrived on the scene immediately after the shooting, Elijah Simpson, had testified that he didn’t see a gun in the vehicle when he lifted up the airbag and looked in the car. Simpson also testified that it was strange that Stockley was allowed to go back and forth between his own car and the scene of the shooting, and that Stockley was the only officer to remove his gloves during evidence gathering. (This was how Stockley's defense team says the gun was contaminated with his DNA. The prosecution says he removed the gloves on purpose to have that excuse.) This testimony from a fellow officer was not enough for Wilson, because Simpson didn’t directly see Stockley actually physically plant the gun:

There were several officers standing around adjacent to the driver’s side of the Buick and not one of them was called to testify that they saw Stockley plant a gun in the Buick.

Stockley testified that he had actually gone into the bag in his vehicle to get QuikClot wound dressing from the car and administer it to Smith, but decided against it because “it was futile.” Simpson testified that no one attempted to help Smith even though “he appeared alive.”

Wilson brushes all this off by saying that no extra gun can be seen on Stockley’s person in the blurry cellphone camera footage of the incident that was the main relevant video evidence remaining after one of the officers involved turned off the police vehicle’s dashboard camera. From Wilson:

Stockley was not wearing a jacket; if he had such a gun in his possession it would have been visible on the cell phone video. The gun was too large to fit entirely within any of the pockets on the pants he was wearing, there was no bulge in any pocket indicating a gun within the pocket, and the gun would have been visible if it was tucked into his belt.

It’s inconceivable to Wilson that the gun was not visible in the limited available cellphone footage, or hidden elsewhere on Stockley’s person than one of the places he enumerates.

Finally, Wilson says that he cannot think of a motive Stockley might have had to “kill this motherfucker,” even though Smith had just clipped Stockley with his car. (Stockley was carrying a personal AK-47 at the time, a violation of department policies.)

These are not the only examples of Judge Wilson bending over backward to find validation for Stockley’s threatening words and repeated violations of department procedure in this killing of a man who another officer had found appearing to be unarmed. But they are the most egregious.

If there is one new lesson in this whole tragic episode, it’s this little bit of insight into the flawed logic, acceptance of hearsay as fact, and ugly ex post facto justifications that go into exonerating white men in uniform when there’s evidence that they have assassinated black motorists.


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In Stunning New Deal With Democrats, Trump Agrees to Be Impeached Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=9160"><span class="small">Andy Borowitz, The New Yorker</span></a>   
Saturday, 16 September 2017 14:42

Borowitz writes: "In his most stunning deal yet with Democratic leaders, Donald Trump agreed on Friday to be impeached by the end of 2017."

Trump said that the Democrats had convinced him that agreeing to be impeached would make him soar in popularity. (photo: Evan Vucci/AP)
Trump said that the Democrats had convinced him that agreeing to be impeached would make him soar in popularity. (photo: Evan Vucci/AP)


In Stunning New Deal With Democrats, Trump Agrees to Be Impeached

By Andy Borowitz, The New Yorker

16 September 17

 

The article below is satire. Andy Borowitz is an American comedian and New York Times-bestselling author who satirizes the news for his column, "The Borowitz Report."


n his most stunning deal yet with Democratic leaders, Donald Trump agreed on Friday to be impeached by the end of 2017.

Emerging from an Oval Office meeting with Senate Minority Leader Charles Schumer and House Minority Leader Nancy Pelosi, a beaming Trump touted the deal for his imminent removal from office.

“Chuck and Nancy and I got a deal done on impeachment,” Trump said. “It was a good deal and it was a fast deal.”

Trump said that the Democrats had convinced him that agreeing to be impeached would make him soar in popularity. “People are going to love me for doing this,” Trump said. “They’re going to love it on all the channels.”

In a barb aimed at House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell, Trump said that the impeachment agreement was something he “never could have gotten done” with the Republican leadership.

“I went around and around with the Republicans for months on health care,” he said. “This meeting with Chuck and Nancy took, what, five minutes, and I could get back to watching TV.”

Hoping to capitalize on their momentum, Pelosi and Schumer said that they would meet with Trump next week to discuss the ouster of Vice-President Mike Pence.


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The Ecological Is Political Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=43501"><span class="small">Daniel Denvir, Jacobin</span></a>   
Saturday, 16 September 2017 14:14

Denvir writes: "For many in the United States, September has brought home the visceral consequences of climate change. First Hurricane Harvey devastated Houston, TX, bringing us images of stranded elders awaiting rescue in waist-high water."

The idea that we can't politicize this by talking about climate change or any of the myriad issues which have turned Harvey into a human disaster beyond a physical one is wack. (photo: Jose Jimenez/Getty)
The idea that we can't politicize this by talking about climate change or any of the myriad issues which have turned Harvey into a human disaster beyond a physical one is wack. (photo: Jose Jimenez/Getty)


The Ecological Is Political

By Daniel Denvir, Jacobin

16 September 17


An interview with Kate Aronoff.

In the coming crisis, inequality will kill as many people as storms do.


or many in the United States, September has brought home the visceral consequences of climate change. First Hurricane Harvey devastated Houston, TX, bringing us images of stranded elders awaiting rescue in waist-high water. Then, Hurricane Irma, which was a Category 5 storm for around three days — nearly a record — hit Florida, where residents had to weigh evacuating against getting fired from their job. Any scientist will be loath to confirm a direct correlation between the storms and global warming. But we do know that it’s likely we’ll see more, and stronger, of such storms. And their impact will continue to be unequal, with the poorest slammed with the worst consequences of a warmer earth.

To discuss this and more, Daniel Denvir for The Dig, a Jacobin podcast, spoke with Kate Aronoff, a writing fellow at In These Times covering climate and American politics. She’s also a contributor to “Earth, Wind, & Fire,” our most recent issue, which covers the ecological crisis.

Well, when you think about climate change and its relationship to specific weather events, it’s hard to draw direct correlation between storms and rising temperatures and rising emissions. There are a couple of things we know — full disclosure, I’m not a scientist and don’t spend most of my days looking at the science of climate change — one of the biggest contributors was that the waters in the Gulf of Mexico were much warmer than they have been in the last several years. Storms feed on this type of warm water and that’s how you get this super-storm that is in some cases stronger than it would have been otherwise. Michael Mann who is a climate scientist at Penn State University has said that the storm surge in Houston was half a foot higher than it would have been a decade ago.

KA: He’s a great person to go to in part because scientists tend to be cautious to a fault. They aren’t as a profession prone to make these direct lines or talk about correlation and causality. They tend to be cautious, and understandably so, about making direct links between any weather event and the broader changes that are happening in the atmosphere. One of the metaphors that I’ve heard used to talk about this alludes to Big Tobacco and the fights against that. If any individual smoker gets cancer, you can’t blame the specific company for that person’s cancer.

DD: Or a specific cigarette.

KA: But there’s a very good chance that their smoking had something to do with it, and that being marketed to by cigarette companies had something to do with it.

DD: And you can say on a statistical level that X percentage of people who died from lung cancer likely died because of cigarettes. You can draw more aggregate level conclusions.

KA: Exactly. We can make similar links to the extractive industry and storms like Harvey. A hundred companies are responsible for, I think, over 70 percent of emissions since the mid-eighties. You can’t blame Exxon Mobil for Hurricane Harvey, but you can say that they had something to do with it.

DD: I spoke about this in my interview with Emily Atkin, but wanted to hear your thoughts on it. Science, obviously, has a hard time talking about the relationship between global warming and severe weather in a way that’s translatable to the politically compelling language that can make people understand the connections. What do you think about the media’s role as translators, as interpreters in this process? Have they done a very good job so far of giving global warming context? I’m talking about mainstream and print media.

KA: No, definitely not. I think it’s been flagrantly irresponsible to watch not just Fox News which you expect to toe a denialist line, but places like MSNBC and CNN, which position themselves as opposition media, failing to ask this question: Why is that Houston has had three “five-hundred-year” floods in the last three years? It’s hard to have an intellectually honest conversation about Hurricane Harvey without talking about this. The fact that you can have politicians like Ted Cruz go on CNN and talk about Harvey without being asked if they believe this is linked to climate change is astounding. I believe this is a real fault of how the mainstream media works and the various efforts to depoliticize what’s happening. It’s depoliticized in some sense and perfectly politicized in others. I have seen CNN rightly calling out politicians who voted against aid for Hurricane Sandy and are now asking for money for people affected by Hurricane Harvey. That’s fair and it’s also political.

The idea that we can’t politicize this by talking about climate change or any of the myriad issues which have turned Harvey into a human disaster beyond a physical one is wack. It’s well past time that we started having an honest conversation in the mainstream media about the relationship between these more frequent weather events, and the fact that our earth is getting warmer.

DD: Not only are these extreme weather events already and inherently political, but there’s also a whole politics to this notion of “don’t politicize disasters.”

KA: These events are always politicized. Look what happened in the aftermath of Hurricane Katrina. There were massive levels of privatization; the city school system was almost entirely privatized. Naomi Klein has done a lot of work about this; it’s the quintessential example of the shock doctrine. Capitalists coming in and taking advantage of people in cities who are in a moment of real suffering and using it to inject a radical free-market doctrine. The historical record shows that these crises are politicized.

It’s in part the responsibility of the Left to be pushing that line. We’re operating on a terrain where this is politicized already, and need to be talking about what politicizing this in the right ways looks like. How can we think about this as an opportunity to think of these broader issues? Whether that’s climate change, irresponsible forms of coastal development, city planning and zoning, or the fact that these refineries in Houston are just a couple of feet above sea level and extremely vulnerable to any sort of disaster. I don’t think we should be afraid to bring those issues up at the same time as having tremendous empathy for people who have had their lives ripped apart. I don’t think those two things are in contradiction at all.

DD: Both you and your colleague Daniel Aldana Cohen wrote critiques of the New York magazine viral seven-thousand-word cover story about climate change. Cohen wrote, “The actually realistic danger zone is a combination of too little decarbonization, too late, in the context of hardening inequalities of class, race, and gender? — ?in short, eco-apartheid. Those brutal inequalities, and the bullets that maintain them ?— ?not molecules of methane? — ?are what will kill people.”

Speaking of the unstated politics of this disaster, how have we seen inequality playing out in Houston?

KA: We’ll see even more of this as the days go on and we get more news about what’s happening. Two things come to mind. The first happened before Harvey with border patrol agents. They had checkpoints open in the Rio Grande Valley as the storm was coming through. They said that as long as the highways were open they would be there, which is deadly for undocumented immigrants who might say, “If I remain here for this storm I risk my life, but if I try to get out of harm’s way I risk deportation.” It’s horrifying. Forcing people to make that choice is, like Daniel said, one of the horrors of how climate change is going to play out.

DD: In Houston, is it clear yet how the inequalities on the ground are shaping the impact of the storm? Katrina did seem to affect poor black Lousianans the most. But the pictures coming out of Houston seem to show a mix of people from all walks of life getting evacuated in boats. How do you parse the impact of inequality so far in Harvey?

KA: The big one I’ve seen so far is that a lot of refineries in Houston and towns around it like Port Arthur are located predominantly in communities of color that have been fighting the impact of these refineries for generations. As long as they’ve been there, they’ve had worse quality air, worse water, higher incidents of cancer and other sorts of diseases. So with the storm coming through, that magnified those impacts. There are foreboding reports about how precarious some industrial facilities are, and questioning their ability to keep out enough water to prevent massive spills. Some refineries have already emitted more emissions as a result of certain systems breaking down from the floods. That is going to hurt the people who live in the communities around them. This is the case not just in Houston, but basically anywhere fossil-fuel construction exists. It tends to be in poor communities, usually in black and brown communities.

DD: And I anticipate that it will also be in the recovery that we see a intense political-economic disparity in the impact of this storm.

KA: Exactly, I was reading recently that a huge percentage of residents don’t have flood insurance, which will make it much more harder for people to bounce back from this. The broader inequality baked into some of these federal programs is that if you don’t have enormous patience for wading through endless layers of red tape to apply for aid, then you might just not get aid. There are stories after Sandy of people who had gone through months-long processes of trying to get their homes rebuilt from different federal agencies that at some point just gave up. They couldn’t deal with it anymore and had to move on with their lives. It’s one of the more subtle ways that a recovery effort breaks down.

It’s no less damaging than increased pressures of gentrification in poor neighborhoods like you saw after Katrina. These rebranding efforts to build the city back in a way that is more friendly to capital than it was earlier. We should never underestimate how creative vulture capitalists can be in the aftermath of these things. They think of totally new ways to destroy the public sphere and rapidly bring in private-sector “solutions.” That’s something to watch for. We don’t totally know what the road map looks like for them. I’m sure there are people actively plotting ways right now to take advantage of this situation.

DD: Zooming out a little bit, I want to get into the recent history of climate politics. Trump is obviously intent on facilitating the rapid destruction of the earth because he prizes the interests of big money friends over science that he probably doesn’t understand very well. We’re nearly nine months in, can you lay out what Trump has done so far on climate?

KA: It’s hard to keep track of everything and it’s my job to do that. Right out of the gate he prioritized expanding fossil fuel infrastructure. Within four or five days of taking office, he signed an executive order greenlighting the Keystone XL and Dakota Access pipelines, which had both been defeated in large part due to pressure from popular movements against them. On the one hand, I think that’s because Trump loves pipelines and a lot of his friends love pipelines, and it was a “fuck you” to the people who fought them making clear out of the gate that “I don’t care” about these campaigns. That’s on top of bringing in Scott Pruitt as the director of the EPA. He’s managed to be one of the more quietly efficient members of the administration. He gets less heat than other people like Bannon and Betsy Devos.

DD: He keeps his head down and works.

KA: Beyond striking mentions of climate change from various websites, he’s attempting to roll back different key regulations. I think the big prize and what he seems to be making motions toward is repealing something called the “endangerment finding,” which gives the EPA the authority to regulate emissions. There’s debate about how far he’ll get with that, but that’s been the ultimate prize for a while.

Things like that have been part of Pruitt’s ideological project for a long time. He was one of the biggest proponents of “cooperative federalism,” which is a legal doctrine about decentralizing control of federal agencies, and he hosted a conference on this several years back. He sued the EPA thirteen or fourteen times before becoming its head. He’s on this mission to destroy it from within. He appointed Rex Tillerson, the longtime CEO of Exxon Mobil who has never had a job that was not Exxon Mobil, to secretary of state. Thankfully, Tillerson seems pretty incompetent at that job. He does not seem to know how to be secretary of state. This would have been unthinkable several months ago and is now just the reality that we are living in.

A lot of these regulatory rollbacks are playing out quietly because it’s a little wonky. It’s not sexy, politically, to talk about. It’s one of the areas where the Trump administration has been the most effective in peeling things back.

DD: The Dakota Access and Keystone XL pipelines are of pretty significant political importance to Trump. They are iconic of the extractive industries that he touted as the means to make America great again during his campaign. These are industries he pointed to when he pulled out of the Paris agreement and said, “I’m with Pittsburgh not Paris.” Even though Pittsburgh hasn’t been a steel city for quite awhile, it  doesn’t matter because he likes these retro-icons of masculine extractive prosperity.

KA: The economic question here is huge. Bryce Covert wrote this piece a couple months back pointing out that most of America’s working class are not working in the extractive sector; they aren’t even working in manufacturing. There are seventy thousand coal workers in the country. This is a fraction of the number of service workers and so-called “pink-collar” jobs that employ most of the country’s working class. For Trump, it’s all about these questions of identity. If he can create this image that he is helping a downwardly mobile white working class, which is in some ways a fiction that he’s created, then that’s what he’ll do. The ties between that and expanding the extractive industry are clear. Coal miners are this quintessential image of what the working class looks like, that as you said is pretty outdated.

DD: Even though it is a bit of a fiction that he has created, at the same time, I think it’s important to not dismiss the concerns of people in actual coal communities that certainly have been abandoned by people across the bipartisan political establishment, but then, even more broadly, to think through why they are a salient icon for an imagined America that did have a stronger economy, with more widespread prosperity.

KA: Between Trump and environmental advocates, there’s a sense in which these two sides talk past each other when it comes to thinking about coal communities. On the one hand, Trump is trying to resurrect this industry which in reality has been the main driver of job loss — in West Virginia, Kentucky, and other states whose economies have been heavily dependent on coal — by integrating different kinds of mining processes and outsourcing workers from places outside of where mines actually exist. You have a narrative in climate circles and the Democratic Party, in particular, that these places are backwards. From climate people you hear that coal miners can pick up and go get a job in the solar industry or build wind turbines, and that there are so many other jobs that they can do. That’s not the case, especially not right now, for a lot of people.

There’s a real lack of respect for how the work of mining communities helped build the country. People whose families have worked in mines for generations. I don’t think we should dismiss that. In any sort of just transition away from fossil fuels coal communities have an outsized role to play in driving that transition. We have not been very good as a country transitioning in to different types of economic activity. Paying close attention to the folks who are going to be worst hit in a move away from fossil fuels is important.

DD: Speaking of a failure to have a compelling message, I want to talk about the mainstream liberal climate agenda. In a recent piece at the Nation, you wrote that Al Gore’s new movie, which is called — surprise, surprise — An Inconvenient Sequel, failed to address climate change in a politically compelling way. You write that it puts forward a West Wing theory of climate politics. What do you mean by that?

KA: Gore is part of a larger trend here. At least half of the film we’re following Al Gore along hallways in Paris in the Paris climate talks. It’s an almost literally West Wing set-up where he’s walking down hallways very quickly and talking to people.

DD: Which is an image that plays perfectly into Trump’s caricature of Pittsburgh vs Paris.

KA: Yeah, exactly. I think that’s the bigger issue here. Not to denigrate some of the genuinely important work that Gore has done, I think he woke a lot of people up to climate change. Certainly, it was something that I paid a lot of attention to as a kid through watching his film and realizing this was a problem. But I think what you see, in this movie, from him and a couple of other characters in the climate sphere more generally is this outdated way of thinking about politics. He has this idea that if you can call up someone in the Modi government and convince them that transferring over to renewables will be good for their economy, then that’s going to get it done. Or that if you have enough conversations with people like Elon Musk, then climate change will be averted. It’s dangerous. It’s wrong on the level of how change happens, and it also makes the Right’s job easier. It makes it easier for the Right to talk about climate as being something that only elites care about; that only people with the luxury to think about this thing that’s happening far off in the future care about. Having people like Al Gore, Elon Musk, Leonardo Di Caprio, and these Davos regulars as some as the most visible faces of the climate fight puts us in this horrible position of making the Right’s argument for them.

DD: Wait, you’re saying that people don’t see their own life stories in those of the Davos elite?

KA: I don’t know who does. Maybe if you also go to Davos.

DD: You also wrote that the problems with Gore’s argument echo the problems that ultimately sunk Hillary Clinton’s campaign. Namely, they highlight what’s wrong with the other side instead of putting forward a positive, compelling agenda as an attractive alternative. Is that right?

KA: Yeah, that’s exactly right. The other half of the movie which was not watching Gore on conference calls with various dignitaries is these slideshows of horrible, horrible weather events like typhoons and floods. There are scenes of him putting new videos into the slideshow. It’s eerily similar to what the Clinton campaign did which is operate from this logic that if we just show people how bad this future could be, then they will believe us. It didn’t work for the Clinton campaign, and I don’t think it will work for climate. There are very compelling reasons for a much wider swath of the population to think about this as not just an existential problem, but actually something that could bring with it a fairer, and more democratic economy.

DD: It seems like in this situation, it’s easier for the extractive industries and their political allies to argue that environmentalists are on one side and the people and business are together on the other. How did business succeed in convincing a significant proportion of Americans that, at least on environmental issues, their interests were one and the same?

KA: A lot of it has to do with money. Fossil fuel companies have spent untold millions of dollars on ad campaigns in parts of Appalachia trying to convince people that the interest of business and working people are aligned. There’s that and industry propaganda. Some of which isn’t propaganda. We were talking about coal communities earlier. There is a real sense that the coal industry has made people’s lives better. It’s been some of the only economic activity in parts of the country for a long time. That has not been true for the last several decades, but that’s not a hard case to make if your whole family has worked for coal companies for generations and that’s what you know. I don’t chide people for thinking that. It’s not a case of false consciousness that people believe that. Especially when there is not a better plan on offer.

Environmentalists since environmentalism have not been terribly good at paying attention to the needs and concerns of working people. It’s existed as this higher realm of thinking. You need to have a concern for the planet, the trees, and the atmosphere that any average person does not have a super clear reason to share, especially when they are trying to put food on the table and a roof over their head. I don’t want to say those things are equivalent; I think a lot of is sheer force of money and propaganda from the fossil fuel industry, but I think it is also that the environmental movement has made it easy to make those critiques.

DD: Even as the extractive industries wage this well-funded propaganda climate campaign of climate denialism, the same mainstream environmental groups that are failing to put forward a compelling transformation message about climate change are also arguing that it’s in corporate America’s interest to deal with the problem, which doesn’t seem like a great way to rally people to the cause. Shout out to Carl Pope!

KA: There’s a deep history to why this happened. It goes back to people like Pope and Fred Krupp. Around the time when Bill Clinton and his advisers were crafting this Third Way strategy there was something in the environmental movement called the “third stage.” It came from a similar operating logic that these campaigns shouldn’t be as confrontational, and that we should try to make amends with the Right and appeal to the rational business interests of conservatives and big corporations to get on their side. This is part of why you hear these bizarre arguments that you can save money if you switch over from fossil fuels. Corporations do not need to be told how to save money. They have teams of people who figure out how to do that.

DD: They’ve probably already figured it out.

KA: You have firms like Blackstone who are actively figuring out ways to strike fossil fuels from their investment portfolio because they don’t see a profit in it. But to have that be a strategy for the climate movement is just bizarre. The object of this is these companies that are inherently conservative and do other bad things in the world. It also forgets about the rest of people in this country. They must be alienated to make an argument that is so aimed at elites.

DD: So what is the positive left-wing agenda that we are not hearing from either Al Gore or the mainstream environmental groups? What would that look like?

KA: We do have some examples of what this could look like. Already, I’ve written a decent amount about rural electric cooperatives which are complicated institutions. They are largely off coal, very bureaucratic but are nominally democratically owned and have their roots in New Deal progressivism that was intended to provide affordable power to people and economic development.

We can look to the genesis of the rural electric cooperatives for inspiration. Especially as we face a problem with renewable energy that is similar to the problem that created those co-ops in the first place. Some 90 percent of rural homes lacked electricity, and it was inaccessible to them because the private market failed to provide it. These institutions were framed as providing broader economic development.

We can do a very similar thing with wind and solar. You can imagine publicly owned utilities creating massive numbers of jobs to scale up wind and solar at a local level and making that more easily accessible to people in different towns and cities. On a broader scale, we need to upend who holds power in our economy. The fossil fuel industry is one of the most powerful industries in capitalism. If you create a successful drive to nationalize them or rapidly scale back their power that will create a real precedent for other industries. People talk a lot about agriculture and climate change. If you nationalize Exxon, then you can nationalize Monsanto. Have that be the crux of a populist demand of a climate movement that is looking to win popular support.

The other thing is a federal job guarantee about climate. Simply put, we have a lot of work to do in the lead up to not just mitigating climate change, but also protecting cities and different places against the impacts that are already locked in based on the amount of carbon we’ve already put in the atmosphere. There are job opportunities for people who might not have jobs otherwise. We can see climate change as a way to get to full employment, which is scary for economists to talk about but could be a real kick in the ass for lack of a better word. To make that happen and then hold it up to Trump and ask: “How can you keep millions of Americans out work by not seeing this transition as the greatest job creator in generations”?

DD: It seems that one real challenge with talking about climate change is that compared to the see/touch/smell pollution of burning rivers and dirty air that catalyzed the modern environmental movement in the sixties and seventies, climate change is just so diffuse in its causes and effects compared to previous environmental problems and to prior eras of capitalism.

How do you suggest that climate change be broken down in a way where the causes and effects can be understood in a way that connects to these issues around political economy that are most salient for people?

KA: One of the best examples of the Right doing this is how the national debt became an issue that people suddenly cared about. The national debt is a fiction — not that it doesn’t exist, but the way the Republicans have talked about it since the mid-nineties is a product of these effective propaganda techniques. I think it was Frank Luntz in 1994 who said, if hard-working Americans have to sit down at a table and balance their budget then why doesn’t Washington? Which is not how budgets work at all, since no American has access to a central bank. It’s based on this total fiction but it’s become very powerful. Election cycle after election cycle you see voters ranking the national debt as a top priority issue. At this point, Democrats and Republicans feel accountable to keeping spending constraints so we don’t drive up the debt due to fears of these bondholders coming to collect on America.

We don’t have to be grossly manipulative about climate change partly because climate change is real and in some sense much more real than the debt. It’s not impossible to make something that can seem abstract into a real material issue. Again, part of the way to do that is to tie it back to people’s material concerns and wedding climate change to a more redistributive economic agenda.

DD: This brings us back to that New York magazine piece in terms of the question of how to talk about how terrifying climate change is. If on the one hand the future does look catastrophic, shouldn’t we be honest even if that honest picture is horrifying? On the other hand, there is a strong possibility that painting those catastrophic pictures inspires fatalism, freezes people, and makes them nihilistic. How do you think it should be approached?

KA: Yeah, it’s tough. My knee-jerk reaction to that piece was that we shouldn’t engage in this scary doomsday scenario because at some level it  does turn people off and it makes people shut down thinking about climate. At the same time there is something that is effective about it. More people read that story than have probably read any story about climate change in a very long time. It does seem to be an effective propaganda technique in some way, but I think there is a real danger of making it seem hopeless.

Part of the way to confront that is to be realistic about what is going happen. We have a responsibility to not sugarcoat that while at the same time presenting real alternatives and solutions to it. That requires a different conversation about climate policy than we have had in the United States for a long time. Just the scale of solutions needed to actually take this thing on are a little bit unthinkable in terms of the political imagination this country. But that ambitious thinking is needed. Historically, that type of thinking has come from the Left. That’s why the Left has a specific role to play in this. I don’t see the calls for nationalization and job guarantees coming from the center or the Right. Presenting a better narrative than we have now across the political spectrum is the Left’s role. The Left needs to play more of a role than it is now.

DD: I want to get into the policy-making history here. To start, can you briefly define what cap and trade is and what a carbon tax is?

KA: A carbon tax is what it sounds like, it taxes major polluters for the amount of carbon they put into the atmosphere. Often, it is seen as sort of a pass-through tax. If you put say, a hundred-dollar tax on carbon for gas companies, they will pass a dollar increase in the price of gas down to consumers. Companies will downstream the tax and have consumers pay that out.

Cap and trade is somewhat similar in that some versions of it operate essentially as a tax, but the crux of cap and trade is that there are a certain amount of credits allotted by the government that firms can purchase. So, if you’re a coal or gas company you can buy a certain amount of credits and those credits correlate to the amount of carbon you can emit. Sometimes those are auctioned off quarterly, sometimes yearly. It depends on the system. It also allows for the creation of carbon markets, which are rightfully, I think, pretty controversial. If you purchase an amount of credits and you pollute less than the amount you purchase, then you can sell those to other people. That price becomes speculative and can carry over to the next year.

These proposals vary a ton in terms of how they actually work. Sometimes there’s a floor and a ceiling on the price of a credit. As you might be able to tell, cap and trade is a tremendously complicated program to explain to anyone who is not deeply enmeshed in these conversations.

DD: Now let’s dive into the political history of those policies. I want to rewind a bit and talk about the Obama administration’s track record on climate change. First, his 2010 push for cap and trade failed; explain what that was and why it didn’t work out.

KA: For folks who don’t know, cap and trade is a system by which in which you sell a number of credits to major polluters to determine how much they can emit in a current cycle. Obama made one of his big early pushes to get this program passed, and a lot of green organizations lined up behind it and tried to push through a program. During the negotiation process it became their plan to push through anything that could pass. The final version of Waxman-Markey, which ended up getting voted down, would have greatly constrained the EPA’s ability to regulate pollution. Theda Skocpol has an in-depth report on this that’s about a hundred thirty pages but is definitely worth it for anyone thinking about this. One of the big things she talks about is how cap and trade is a confusing thing to explain to people. The green organizations in the past have been trying to bring in big business, Republicans, and appeal to centrist Democrats, forsaking any grassroots support that they had for getting the bill passed. You saw it even in the kinds of staffing they were investing in. These big organizations that were involved in the fight for cap and trade divested from their field organizing teams and invested in their lobbying staff in Washington; they gave up on trying to win people over to this issue. The bigger question is this a good issue to begin to with?

DD: It’s bad politics, but is it bad policy?

KA: It’s hard to draw links between those policies and their ability to actually bring down emissions. The main people who love these policies — carbon taxes especially — are economists. Something like 95 percent of economists support carbon taxes or a suite of market-based approaches to solving climate change with no connection to how well they actually get the job done. There is no real comprehensive study of how well carbon taxes do bring down emissions. There have been some piecemeal studies, but it’s hard to parse out how much a carbon tax or cap and trade being implemented in a certain place has contributed to bringing down emissions versus closing down coal fired plants, enforcing regulations to a great scale, or things like the recession.

Many of the policies got passed around 2008, 2009. There was one of the sharpest drop-offs in emissions this century was from the recession and a downturn in economic activity. So people will sometimes point to that reduction as the result of a carbon tax and say, “Hail the carbon tax! Carbon taxes are good policy.” It’s hard to parse that out, and it arguably has to do more with the recession and other factors than these market-based mechanisms.

DD: To conclude that discussion, are cap and trade and a carbon tax imperfect but desirable solutions or just bad ideas that we should oppose?

KA: The complicated part of this discussion is that I actually think a carbon tax especially is a common sense thing. It’s fair. The economist argument isn’t wrong. High-polluting firms are not paying the true price for what they are putting into the atmosphere so we should pass a carbon tax.

So I think we should pass a carbon tax in no small part because it’s a good way to raise money. Especially at a state level where budgets are more constrained, having a carbon tax can fund transition programs, can fund investment in low-income communities, and can be used to do all these good things. I don’t think we should pretend it’s going to bring emissions down dramatically. I do think it can be useful.

DD: To get to what’s called “deep decarbonization.”

KA: It makes sense as one piece of a larger suite of policies. But as something that plays an outsized role in the conversation about climate policy, I don’t think it makes sense because it’s based on two things that are hard to build support around: people don’t care about carbon on an emotional level, and people don’t like taxes. So it’s combining two things that are a pretty hard sell. There are other big policies that you can point to that would potentially be easier to garner political support behind.

DD: In a nutshell, what are the key things that need to happen to achieve deep decarbonization if a carbon tax is a starting point, but nowhere close to enough?

KA: I don’t know if it’s a starting point, there are probably other starting points that make more sense. The big thing — and it’s tough to translate this into a real policy discussion — is that we need a carbon budget. You need to constrain the ability of big polluters to pollute. The big way to do that is to nationalize fossil fuel companies and to bring them under public ownership. There are precedents for that.

There are other things you can do. You can limit the production of combustion vehicles. Denmark just did this. They are phasing out combustion-powered cars by 2030 which is a common-sense policy. Different cities with bigger budgets can start making decarbonization plans. A big part of this is municipalizing utilities or bringing utilities under public ownership and getting rid of investor-owned electricity, which is not only price-gouging and polluting but, according to a recent study from InsideClimate News, has also been engaged in the same type of climate denial propaganda that Exxon Mobil has been involved in that has a corrosive influence on politics.

DD: My last question for you returns to Trump and Trumpism. When we think about far-right or right-wing nationalism, the problems associated with that which understandably come to mind are xenophobia, racism, and militarism. But far-right nationalism also poses a political obstacle to the mindset that we need to confront the ecological crisis.

KA: It’s hard to know exactly where to start with the relationship between the far right and the climate because there are just so many horrifying connections. On the one level, as we have seen in Syria these historical droughts that the Middle East has been experiencing, which are very much linked to climate change, have been a big contributing factor to increasing political destabilization in the region. This has driven migration into parts of Europe and has fueled the rise of these far-right groups.

These far-right groups tend to be climate deniers. This is true in the UK, true in Germany, and it’s sort of true in France. The National Front’s climate politics are a little thorny. Then they bring into power these governments which are outright deniers and will fuel even more harmful policies which stands to exacerbate climate change. It’s a feedback loop. Political destabilization as connected to climate change and mass migration. Whatever scenario we go from here, many many people will have to migrate. In Bangladesh, there have been historic floods, 1,200 people have died, but estimates say that fifty million Bangladeshis will be forced to migrate if we continue to pollute as we do. In terms of how the far-right deals with migration that’s a big question, and it will become more important in the next few years.


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FOCUS | Injustice, Again: Another Police Shooting in the St. Louis Area Ends in Predictable Fashion Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=11104"><span class="small">Charles Pierce, Esquire</span></a>   
Saturday, 16 September 2017 11:55

Pierce writes: "Once you apply one of the shebeen's oldest axioms - that it's not About Race because nothing ever is About Race - the events in a St. Louis courtroom on Friday make perfect sense, as do the events of December 20, 2011, which prompted those events."

Protesters gathered Friday in St. Louis after a judge found a white former St. Louis police officer not guilty of first-degree murder in the death of a black man, Anthony Lamar Smith. (photo: Jeff Roberson/AP)
Protesters gathered Friday in St. Louis after a judge found a white former St. Louis police officer not guilty of first-degree murder in the death of a black man, Anthony Lamar Smith. (photo: Jeff Roberson/AP)


Injustice, Again: Another Police Shooting in the St. Louis Area Ends in Predictable Fashion

By Charles Pierce, Esquire

16 September 17

 

nce you apply one of the shebeen’s oldest axioms—that it’s not About Race because nothing ever is About Race—the events in a St. Louis courtroom on Friday make perfect sense, as do the events of December 20, 2011, which prompted those events. From The St. Louis Post-Dispatch:

Stockley, 36, whose home is now Houston, was charged last year with first-degree murder and armed criminal action in the Dec. 20, 2011, shooting death of Anthony Lamar Smith, 24, at the end of a police chase at West Florissant and Acme avenues. The chase began when Stockley and his partner Brian Bianchi tried to arrest Smith for a suspected drug deal at a Church's Chicken at Thekla Avenue and Riverview Boulevard.

At the beginning of the chase, dash cam and surveillance footage from a restaurant shows Smith backing into Stockley and his partner's patrol car before speeding off. Wilson wrote, "Mr. Smith's Buick did not 'gently strike' the police vehicle." "The police pursuit was in response to Smith's perilous conduct ... This pursuit was a stressful event for the occupants," Wilson wrote. Prosecutors asserted that Stockley's partner, Bianchi, did not unholster his weapon during the fatal confrontation. Wilson wrote, "At the time of the shooting, Bianchi was an inexperienced police officer. To draw compelling inferences from Bianchi's actions or inactions is not a reliable endeavor, and would amount to mere speculation."

Prosecutors said Stockley carried out the premeditated murder of Smith by shooting him five times at close range and then planting a .38-caliber revolver in Smith's Buick after police pulled Smith's body from the car. They asserted a "kill shot" was fired at close range after the first four shots were fired in close succession and struck Smith in the shoulder.

A high-speed police chase preceded the shooting. During the pursuit, Stockley shouted commands to Bianchi, who drove their police SUV while chasing Smith through the Walnut Park neighborhood at speeds approaching 90 mph. Amid sirens, engine noise and squawking radio traffic, Stockley can be heard on an in-car camera video telling Bianchi "Gonna kill this motherfucker, don't you know it."

Officer Stockley waived his right to a jury trial and opted instead to have his case heard by Judge Timothy Wilson, a veteran circuit-court judge with, by all accounts, a reputation for fairness. (This, in fact, may be the last case on which Wilson sits.) However, this decision will not redound to his credit. This is how Wilson dealt with the damaging quote about how Stockley and his partner were going to kill the motherfucker.

People say all kinds of things in the heat of the moment or while in stressful situations, and whether Stockley’s saying, “We’re killing this motherfucker,” which can be ambiguous depending on the context, constituted a real threat of action or was a means of releasing tension has to be judged by his subsequent conduct.

Which, according to the prosecutors, involved planting a .38-caliber drop piece in Smith’s car, which certainly would drain some of the ambiguity out of what Stockley said. However, Wilson hand-waved away the charge that Stockley planted the gun, despite the fact that only Stockley’s DNA was found on the weapon.

The gun was a full size revolver, not a small gun, like a derringer, that can fit in the palm of one’s hand or into the side pocket on a pair of pants without being obvious. Stockley was not wearing a jacket; if he had such a gun, it would have been visible on the cellphone video.

There are videos. To me, Stockley could’ve been carrying a bazooka and, from that vantage point, you couldn’t see it. But what you do see is Stockley putting his completely unauthorized personal AK-47 into the back seat of his prowler. Which is interesting. Wilson also waved away the DNA argument, saying, essentially, that the evidence of absence is not the absence of evidence. And then Judge Wilson dropped the sentence that’s going to follow him into retirement.

Finally, the court observes, based on its nearly thirty years on the bench, that an urban heroin dealer not in possession of a firearm would be an anomaly.

Wow.

Just wow.

At the time Stockley killed him, Anthony Smith was only a suspected drug dealer. But, because he was, a conspicuously, ahem, “urban,” according to Judge Wilson, he must also be presumed to be armed and to have murderous intent. Is it necessary to ask whether or not these presumptions would be in play if Stockley had gone out to bust some white H-dealer in the St. Louis suburbs? Or a white meth dealer in the Ozarks? But this is not About Race, because it never is About Race.

Interestingly, Missouri Governor Eric Geitjens had the National Guard on standby, and the federal courthouse announced it would be closed, downtown schools were closed, and large companies in downtown St. Louis sent their employees home early, all in anticipation of a verdict in the case, and probably not in the anticipation of a guilty one, either. The protests began almost immediately after Judge Wilson issued his ruling. The pageant begins again.


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