Monthly Archives: November 2014

The more I read about the Grand Jury maneuver in Ferguson, the more I think it was wrong both in terms of fairness and the kind of openness that would show the public the process was fair. What they did was to turn the Grand Jury proceedings into a trial that excluded the family and advocates for Michael Brown and allowed Officer Wilson's testimony to go largely unchallenged. I'm not going to post a lot more about this but I would direct you to these articles…

• Shadow Trial by Dahlia Lithwick and Sonja West
• Everything the Darren Wilson Grand Jury Got Wrong by Paul Rosenberg
• St. Louis Prosecutor Bob McCulloch Abused the Grand Jury Process by Noam Scheiber
• Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury by Judd Legum

And as I segue this blog back to happier topics, I leave you with the words of MSNBC analyst Lisa Bloom who kinda said what I said earlier…

The biggest thing that jumps out is prosecutors who aren't prosecuting — prosecutors who let the target of the investigation come in, in a very friendly, relaxed way, and simply tell the story. There is absolutely zero cross-examination. Cross-examination is the hallmark of our system, it's the crucible of truth. And I don't say that to use flowery language. That's how we get at the truth.

This whole thing smells. But I'm going to go back to sillier, happier subjects…

Here's a golden moment with one of my favorite musical groups, The 5 Neat Guys…

A fellow named David Noll sent me this…

I wanted to respond to your comment about what was needed in Ferguson was an open trial on the evidence. Prosecutors have an obligation to recognize that they are invested with great power, and we know what comes with great power. If a prosecutor does not believe in a criminal case beyond a reasonable doubt, he should not ask a jury to do so, either.

Our system of justice does not call for us to potentially literally put someone on trial for their life, just to see how the evidence "shakes out." Prosecutors exercise their judgment to drop weak cases all of the time, but Ferguson would have been too politically charged to allow that to happen. That's why it made sense to present the case to the Grand Jury first.

I am not a criminal prosecutor, but I do bring cases in the name of my state, as an attorney for our child welfare agency. I take my obligations very seriously. One aspect of my job is that I must sometimes disappoint investigators who want to bring certain cases. This can happen if the case has facts similar to ones the appellate courts have overturned before, or if an assessment of the evidence and witnesses indicates that the state cannot meet its burden of proof. It does not make me happy to take no action against some parents who leave drugs laying out around the house, or use certain types of corporal punishment. It does, however, bring me satisfaction to know that I am enforcing the rule of law, and seeking equal justice for all.

I understand all that and do not disagree that there are cases that should end with a Grand Jury finding. But I also assume you understand that it's possible to disagree with a prosecutor's judgment call. You write that if one of them "does not believe in a criminal case beyond a reasonable doubt, he should not ask a jury to do so." Okay, but what if that prosecutor doesn't seem to believe in any criminal case of a police officer using lethal force? What if the prosecutor seems biased in that direction? Or is just plain wrong?

The case in question in Ferguson is not one that "has facts similar to ones the appellate courts have overturned." The case against Officer Wilson turned on facts unique to this particular incident. It was a matter of conflicting eyewitness accounts.

Officer Wilson testified and you can read his testimony (and view other evidence) here. I read his account and my reaction was a lot like that of Josh Marshall. Are we right or wrong? I'm not certain. What I am certain about was that I would have liked to have seen Wilson cross-examined by someone trying to poke holes in his story. I don't get that reading the transcripts.

It reminds me of when I've given depositions. I get quizzed by competing attorneys — one trying to guide me into telling the story my way, the other trying to find gaps or inconsistencies or omitted points. The Wilson testimony reads like just the first half of the process…and this is a process on which our entire legal system is based. The Grand Jury seems to have accepted it at face value without genuine cross-examination.

As I understand it, the Brown family can bring a suit for wrongful death against Officer Wilson and the police department. I further understand that if they do that, Officer Wilson would be forced to testify and therefore be cross-examined. He could not refuse to testify under the Fifth Amendment because he would not be incriminating himself. I guess I'm curious to see how it would stand up to that. Maybe it would stand and maybe it wouldn't.

Anyway, thanks for your note, David. I absolutely understand your point and do not dismiss it lightly. But I think it pivots on a certain trust of this prosecutor that I do not share, and I think that treating this case differently — trying to do a more exhaustive Grand Jury finding to preempt a public trial — has made the "politically charged" atmosphere worse, not better.

Today on Stu's Show, newlywed Stu Shostak welcomes his two resident authorities on television, Steve Beverly and Wesley Hyatt for what I'm sure will be a lively and long three-way discussion about the current state of television, including but not limited to what's going on with The View, the mess that Dish Network is becoming, upcoming revivals of old shows, the future of variety programming and Neil Patrick Harris's new venture, Net Neutrality and many other topics.  The discussion will kick off as a four-way discussion as I join in to talk about the Bill Cosby situation.

Stu's Show can be heard live (almost) every Wednesday at the Stu's Show website and you can listen for free there. Webcasts start at 4 PM Pacific Time, 7 PM Eastern and other times in other climes. They run a minimum of two hours and sometimes go way longer. Today's, I can just about guarantee you, will go way longer…like well into next year.  But it will end and not long after a show ends, it's available for downloading from the Archives on that site. Downloads are a measly 99 cents each and you can get four shows for the price of three.  They're a lot of fun to listen to and today's should be no exception.

It has been totally expected for some time but it still jolts to hear that Sharon Sakai, beloved spouse of cartoonist Stan Sakai, died this morning. Stan announced it on his Facebook page like this…

Sharon passed away at 9:00 this morning.

She died exactly the way she wanted to — at home, surrounded by her family. Matthew flew home from up north, where he is going to school, yesterday.

Thank you all so much for your love, prayers and support.

Thus ends around ten years of love, prayers and support…and a superhuman effort on the part of Stan to take loving care of his life partner. This post should be about Sharon but I can't help note the incredible strength and devotion on the part of Stan. We should all wish that in a time of crisis, we could be that good.

One morning ten years ago, Sharon awoke and told Stan, "I can't hear anything out of my left ear." That was how it began. It tuned out to be a meningioma brain tumor — benign but large and inoperable. For a time, radiation therapy kept it from growing and doing further damage but in 2010, it started again. She experienced facial paralysis, impaired speech, dysfunctional body functions and massive weight loss. The last few months, she just laid in bed, sleeping most of the day and unable to communicate in those moments when she was awake. Once in a rare while, she could squeeze a visitor's hand in a way that suggested there was still a person in there.

I cannot, of course, speak for Sharon. I can say that if I had that happen to me, I would want it to end way before it got to that.

I can, however, speak of Sharon. She was a lovely, friendly lady who seemed to be the perfect fit for Stan. She supported him in his work and practically glowed at his successes and accomplishments. She raised a wonderful family and lit up any room she entered with a genuine, human smile. It has been so sad to see that smile go away.

As I said, this was not unexpected.  When I heard the news this morning, my first reaction was sadness, my second was the compassionate version of "Well, it's about time." Because this has been inevitable for too, too long and it was just so sad watching it happen from afar. Our hearts go out to Stan and those who had to watch it up close. It must have been awful because she was once so lovely and full of life.

I've been trying since about halfway through The Robert McCulloch Show last night to write a piece about the Ferguson verdict. I've started several and deleted them.

McCulloch is, of course, the St. Louis County prosecutor who controlled the Grand Jury (or at least the process) that absolved a Ferguson police officer of wrongdoing in the controversial killing of Michael Brown. In the piece I was trying to write, I was trying to make the following points…

1. The verdict may well have been correct given how the laws are currently written.
2. If it is, maybe those laws are written to favor law enforcement too much…and that would not be McCulloch's (or any individual's) fault.
3. Engaging in peaceful protests is a good way to sell the point that the verdict may not have been correct or that the laws might need to be changed.
4. Burning and especially looting are a good way to sell the point that the police should feel free to shoot more people.
5. McCulloch should have known that given the history of race relations in Ferguson and the nature of this particular crime, what was needed was not merely a process that would be legally correct but which would be widely perceived as not rigged by white people in favor of a white cop. It's a maxim that judges need to not only avoid impropriety but also the appearance of impropriety. That goes for the entire judicial process.

And this is where I got lost trying to write something about it all…how to say why McCulloch's long — and at times, condescending — announcement of the verdict sure made it sound like a rigged game. Some of it was the nature of the man himself. Much of it was the unusual way in which this particular Grand Jury seems to have been utilized.

Even before McCulloch was done, one of my favorite political reporters, Eric Boehlert, tweeted: "shorter prosecutor: we already held a trial for the Brown killing. it's called the grand jury. and it was held in private." That sure sounded like the problem to me but I was somehow unable to expand on that thought in what I was writing. This morning though, I read a piece by David Feige that I think nailed it: The Grand Jury process was used to try and insulate McCulloch and his office from responsibility while still getting to the desired (or at least, the expected) outcome.

And that may have been the correct outcome from a strictly legal standpoint. I'm not saying it wasn't. The problem is that a decision has been made and the folks who feel Michael Brown did not do anything that warranted killing him do not feel they had an advocate in that process. It was done behind closed doors to preempt an open trial in which they could have had an advocate. It feels like they arranged it so there'd be someone in the room who had an interest in defending the officer but no one to argue on behalf of Brown. This is not a problem with most Grand Juries because most Grand Juries indict. This one could have too, had McCulloch felt it was in the community's interest to have an open trial.

I have no sympathy for the rioters and looters. The rioters, like I said, just make a large section of the population wish there were more cops out there ready to shoot minorities. The looters just look like opportunists who are even more deserving of being stopped by bullets. So they're at fault, too. I just really feel sorry today for all of us — of any color — who have to live in a nation of increasing racial unrest.

The car I bought a few years ago came with a small defect. The dashboard light that told me when my headlights were on sometimes lied to me. As a result, I got stopped three times by police for driving at night without headlights before I figured out it was lying to me and had it fixed. I was never scared to be stopped by the cops, nor was I even ticketed…but then, I was white, I was driving a new car and I was in Los Angeles, where the police seem to have a better (though by no means perfect) attitude about race than some cities. If I was a black guy in an older car in some cities, I would have been terrified. And I'd be more scared today than I was yesterday.

John Oliver's show is on hiatus but they haven't forgotten us…

Yeah, I'm home from Florida where I spoke and signed books and met an awful lot of people at the Miami Book Fair, which was a load of fun for anyone who wanted to buy books, meet authors and hear most of those authors talk about what they'd authored. I mostly hung out with my friend and editor (two nouns that do not always go together), Charlie Kochman of Harry N. Abrams Books. We were hawking our new tome, The Art of the Simon and Kirby Studio, a hefty collection of comic art produced and/or supervised by Joe Simon and Jack Kirby when they were a duo. I signed a lot of 'em as well as other things for which I've been at least partly responsible.

The trips to and fro were not wonderful. Both flights on American Airlines were utterly full and I forgot how uncomfy that can be for a gent of my size. I am one of those people who does not enjoy travel for the sake of travel. When people tell me, "Oh, you ought to visit Australia some day," I cannot envision anything that could happen there that would make up for all those hours sitting in one seat without enough leg room or lateral clearance. I'm usually lucky enough to either have an empty seat next to me or someone else paying for First Class…but not on these flights.

But it was fun to be at the Fair and especially to hang out in the Authors Lounge, which was full of interesting people to look at and maybe talk with. Charlie and I ate lunch at a table where an attractive blonde lady was seated. I recognized her, he didn't…but when she went to get more chow from the buffet, I whispered to her that was Valerie Plame. I don't know why that seemed so surreal but it did. I also spotted a man I think was Lou Dobbs. At least, he resembled Lou Dobbs and looked very uncomfortable being around so many non-white people. And we saw Tavis Smiley and Paul Williams and George Clinton and Dr. Cornel West and Jason Segal and other celebrity authors. Mostly, we were sitting and talking with other folks involved in comics: Denis Kitchen, Ben Katchor, Joan Hilty, Mark Zingarelli, Joyce Brabner and some others.

I don't have any great anecdotes, I'm afraid. It was kind of a 48 hour whirlwind of cabs, shuttles, signings, the Marriott Biscayne Bay and Miami-Dade Airport. Charlie and I went to hear Norman Lear interviewed about his autobiography. I worked on two different shows for Mr. Lear and never met him…and he had enough of a crowd after his talk that things stayed that way. We also attended a good panel that Joan Hilty ran with Denis Kitchen, Box Brown and Ed Piskor, all of whom have published excellent and true biographical works. I did find myself in a lot of conversations about Bill Cosby, none of them flattering to the man.

A lot of folks asked my about my long-awaited, long biography on Jack Kirby and the answer is that, yes, I'm now able to finish it. Just waiting for legal matters to be resolved. I don't know when but it's now on my active "to do" list…so one of these days. Maybe I'll do more book fairs to promote it. I hope they're all as well-run as that one in Miami.

So how come hotels build showers with no place to put your little bottle of shampoo, your little bottle of conditioner, your little tube of facial scrub and your normal-sized bar of soap you travel with because you can't get clean with a cake of Dove the size of a Hershey's Miniature?

Yeah, Mark woke up in Miami but he'll sleep tonight in his own bed. In-between, he'll be at the Miami Book Fair where he's running about meeting people, signing books, hearing talks and having lunch with Valerie Plame, although she didn't know it. (Some spy she is!) A full report when I'm back in my very own area code.

The Republican-led House Select Intelligence Committee has finally issued its long-awaited report on Benghazi. Its conclusion? No wrongdoing on the part of the White House, no finding that any of the hysterical charges made by Republicans were true. Kevin Drum has more.

Hey, remember that John Cleese-Eric Idle conversation I attended the other night? The one I said was wonderful and I'd love to see it again? Well, now I can by clicking on the embedded video below. You can, too. And I highly recommend you spend the hour and 17 minutes to do so…

I kinda don't wanna keep writing about Bill Cosby here but there's something fascinating about this case…not about the alleged crimes of sex and violence but about our reaction to them and how fans of Mr. Cosby are processing all this information.

While I was in the air yesterday, the news said that more women have come forth with allegations and several performance venues have canceled bookings with him…but at the same time, when he appeared for a show in Melbourne, Florida he was cheered and received a standing ovation. Now, I have no doubt what he did on that stage was very, very funny. Rape charges aside, no one's better at that than William Henry "Bill" Cosby, Jr. and before this new flurry of charges, he always got standing o's.

But I do wonder what, if anything, was on the minds of those who showed up that night, laughed and stood to clap. Presumably, they all purchased tickets before they heard about the fifteen or eighteen (or whatever it's up to now) women who say Cos drugged them then had his way with them and I do understand the feeling of "We paid for these, we might as well use them." Some of those people might even have thought, "Hey, this could be our last chance to see Bill Cosby on a stage."

Still, you can think all that and not give the guy an enthusiastic round of applause that would be interpreted as, "We don't care, Bill. We love you." One does wonder if Cosby hears that and thinks, "Hell, the public still loves me. All I need to do is stonewall and press on and this damn thing will blow over."

I wish someone could have polled that audience to discern their attitude. I'm trying to think of what some of them might have been thinking…

• "No, I didn't really hear anything about rape and anyway, the press prints a lot of crap about celebrities that isn't true. If he really did this stuff, why isn't he in prison or something?"
• "I just don't believe all those women. I think it's some conspiracy to extort money from the guy or ruin his reputation for some reason."
• "I've always loved the guy. I don't care what anyone says. I just don't believe it."
• "I've always loved the guy. What he does when he's not on stage is a separate matter and none of my business."
• "Hey, so maybe he had a little fun with some women who were trying to use him to help their careers. Remember some of them came back to see him again after it. It wasn't a big deal and anyway, if it happened, it's way in the past."
• "I don't know who to believe but I know he's really funny and we had these tickets…"

And there are probably other views. If political discussions on the Internet have taught us anything, it's that some people think some pretty weird things and that they make up their mind about something and then firmly believe whatever "evidence" they have to believe to support that view. There are human beings who insist they have incontrovertible proof that Martians killed J.F.K. to try and stop the U.S. space program.

Unless some recent victim emerges to turn this whole thing into a police matter, Cosby can probably coast for a while on audiences of such people. Someone will book him and he can maintain some pretense of the charges being like gnats that can be swatted away. He's made too many folks too much money for entrepreneurs not to offer him stages and vehicles…until he stops making them money. A career can go on and on for some time before it becomes obvious to all that it's over.

Didn't blog much today because I spent most of it at the airport, on a plane, waiting for my luggage at Miami-Dade Airport or waiting in a long, long stream of people for a taxicab. The cab thing bothered me a little because I figure when you wait that long on a line in Florida, you ought to eventually get in to the Pirates of the Caribbean.

This is where I'm appearing tomorrow and Sunday…the Miami Book Fair. These scenes were shot (I presume) at last year's Miami Book Fair but this year's should look pretty much the same except that I'll be there and it'll be raining much of the time…

Fred Kaplan on the current talks with Iran about deprogramming their nuclear program. I'm currently trying to hold my own talks with various delicatessens about eliminating "weapons-grade" cole slaw.

Mike Nichols once gave his five rules for filmmaking…

1. The careful application of terror is an important form of communication.
2. Anything worth fighting for is worth fighting dirty for.
3. There's absolutely no substitute for genuine lack of preparation.
4. If you think there's good in everybody, you haven't met everybody.
5. Friends may come and go, but enemies will certainly become studio heads.

And I believe the last time he won a Tony, he said in his acceptance speech that his philosophy was, "Cheer up. Life isn't everything." Quite apropos tonight.