Res ipsa loquitur

Res ipsa loquitur

There is a country called ‘Freeland’, where wealthy men daily import hundreds of cases of uncustomed tobacco products, (cigarettes), and they do this with impunity.

In this country, if a black man of the grand old age of 43, who has children and grand-children, finds himself standing on the sidewalk in a city as large as you can find on earth, with nothing in his hand or pocket, and a policeman decides to arrest him for selling loose cigarettes, over his protestations of innocence, he can be strangled to death in broad daylight by a gang of policemen, and the police can do this with impunity.

In this country, if a black youth of 18, is walking in the street, and a policeman suspects him of having stolen 6 cigarillos, he can be accosted and shot to death in broad daylight, and the police can do this with impunity.

In this country, if a black youth of 18 goes to the corner store to buy skittles and Arizona iced tea, a ‘wannabe policeman’ can accost him on his way home and take his life with impunity.

In this country, if a twelve year old child is playing alone in the park with a toy gun, the ‘neighbours’ can call the police and the police can take his life within two seconds of their arrival on the scene’ and the police can do this with impunity.

Age doesn’t matter! He could be twelve or he could be twenty-two. He could be in the park or he could be in the general store, with a toy that he took from the shelf. He will be just as dead within seconds of the police laying eyes on him.

Welcome to America for you will have guessed by now that I am speaking of America, the land of the free. It is all happening here, and understandably, the black community is up in arms. Liberals and progressives are with them marching in the streets. They are demanding justice. They are demanding that policemen on patrol be required to wear a camera on their person, so as to provide video evidence of each police/citizen confrontation. Some of them are demanding that a Special Prosecutor be appointed to pursue police homicides.

These are troubling developments. They lead us to ask what is the source of this immunity from criminal liability that the police now seem to enjoy? After careful analysis we shall be obliged to say that there is no such immunity from criminal liability anywhere in the Constitution or the laws of this country. Our next question will be why is it then that the law is not being applied? Therein lies the question.

The short answer is that State prosecutors throughout these United States, who daily work hand in hand with the police, consistently manipulate the law to protect police men (who kill civilians), from conviction; and for reasons which go deeper and darker than this paper could fully explore, the police in America are much more willing to shoot young black men than other men.

In one of the cases mentioned above, Karl Zimmerman, an acknowledged ‘wannabe policeman, stalked, attacked and shot seventeen year old Trayvon Martin to death. The case went to trial only because there were public protests demanding an indictment, and at the trial the prosecutor came to the bar with a success record of 80/2 in murder trials. Experienced criminal lawyers have accused him of not enunciating a theory of the case with the result that the prosecutor spent the entire trial ‘refuting’ the allegations of the defense. There was only one possible result.

In two other cases, both prosecutors (as they are allowed by law to do), referred the matter to a Grand Jury to determine whether on a balance of probabilities, a prima facie case of murder or some lesser criminal offence existed against the offending police man or police men. In both cases the prosecutor followed the highly unusual procedure of exposing the Grand Jury to all the available evidence (pro and con), including the unchallenged evidence of the offending policeman. In one case the prosecution compounded this suspicious approach by misleading the jury on the relevant law, making only a token attempt to correct this misleading advice before the jury retreated to consider the evidence. It turns out that the main defense eye-witness was likely, nowhere near the scene at the time of the incident.

In the event, the prosecutors appear to have guided the jury to a certain finding, relying on the evidence of the offender and that of a reputed eye- witness whose credibility was (to the prosecutor’s knowledge) flawed. The law does not allow prosecutors this latitude. Yet no one has demanded that any sanctions be laid against them. Instead, protestors are demanding body cameras for policemen and special prosecutors. The fact is that we know what can happen despite the availability of explicit video, and we have no safeguards that even if a special prosecutor is appointed he will not act in a similar manner.

 

The Latin phrase res ipsa loquitur means ‘the thing speaks for itself’.

When applied to evidence in a legal issue it suggests that where the facts in evidence point logically to a certain conclusion, if reality coincides with such a conclusion, then, in such a case, as a rebuttable presumption of law the thing ought to speak for itself. It must therefore follow that since there is no provision in the law giving police carte blanche authority to kill citizens, and since it is a crime of some sort to kill a citizen, every police homicide ought automatically to go the route of indictment. At a trial the policeman will have every opportunity to convince the court that his actions do not amount to a crime of any description. This approach would satisfy for the public, another equitable principle of law – that justice must not merely be done, but it must also manifestly be seen to be done. If we fail to insist that that the policeman who commits homicide be made to account for his actions in a court of justice and settle once and for all that in the circumstances of the particular case his actions were necessary, and protected by law, then we shall only increase the state of tension that already exists between the police and the community.

It is a reasonable conclusion that in order to manipulate the system as they have obviously done, the prosecutors must have acted with indifference to the law, or else in ignorance of it; or perhaps they were merely negligent; or then again they could be guilty of mal-practice. Whatever their failing they must, for the sake of accountability and transparency be made to answer to the Court for their actions; and the disciplinary body that governs the profession of Attorney-at-law should also be required to scrutinize their actions.

It is my opinion, that notwithstanding the findings of the Department of Justice (that no criminal offence was committed), the Grand Jury proceedings in the Michael Brown matter, were fundamentally flawed, and the findings of that jury cannot be allowed to stand. If neither the family of the deceased, nor any of the many civil rights groups that have a vested interest in this matter is able or willing to ask the court for an Order to void these proceedings and set up a new Grand Jury, then it behoves the Attorney General to act in this matter, and no amount of DOJ enquiries can cure this breach.

Although the US system of criminal justice administration is based on the British system out of which it grew, attitudes and values have grown apart and it is no longer appropriate to ask the Prosecutor who works hand in hand with the police all year to ‘turn on’ the police man who is charged with murder. It is time to consider a review of the law along the following lines:

1). All cases of police homicide must go to trial in full court ;

2). All policemen charged with a criminal offense arising out of homicide shall have the choice of being defended by the state prosecutor.

3). Each state shall maintain a panel of senior criminal defense Attorneys to prosecute policemen charged with a criminal offense arising out of a homicide;

4). In every such case the Department of Justice shall provide the investigative personnel to provide the prosecution with the required evidence.

This is the only way to deliver the level of transparency that will make the people comfortable. It is what government for the people demands.