[guest post by Dana]

Concerned about low voter turnout in local elections, the city’s Ethics Commission has come up with a winning idea: pay people to vote!

On a 3-0 vote, the panel said it wanted City Council President Herb Wesson’s Rules, Elections and Intergovernmental Relations Committee to seriously consider the use of financial incentives and a random drawing during its elections, possibly as soon as next year.

Depending on the source of city funds, the idea could require a ballot measure. Commissioners said they were unsure how big the prizes should be or how many should be offered, saying a pilot program should first be used to test the concept.

“Maybe it’s $25,000 maybe it’s $50,000,” said Commission President Nathan Hochman. “That’s where the pilot program comes in — to figure out what … number and amount of prizes would actually get people to the voting box.”

The legalities of such a decision were also addressed:

Ethics Commissioner Jessica Levinson, an attorney and professor at Loyola Law School, said the city should not have to wait until the end of the decade to take steps to improve voter participation. “We have turnout in citywide elections in the high teens and low 20s and I think that’s pretty dismal,” she said.

Federal law prohibits people from accepting payment in exchange for voting. But Levinson, who voted to pursue the lottery concept, contends that statute would not apply in an election where there are no federal positions on the ballot. California law prohibits people from using money or gifts to ensure that voters cast ballots for any particular person or measure. Money also cannot be used to keep people from voting in a particular election, according to information provided by the secretary of state’s office.

Apathetic non-voters clearly do not care enough about the candidates and legislative issues to use their privilege to vote. If the possibility of winning money draws these voters in, does anyone believe they would be casting a learned and informed vote as opposed to just filling in a ballot to win some prize money? Hm, more low-informed voters… who benefits from that?

Don’t worry, an Ethics Commission member reassures:

“When you do have these types of systems people do end up educating themselves before they go to the polls.”

–Dana

[guest post by Dana]

President Obama, back in Washington D.C. for a few days, spoke about the ongoing situation in Ferguson. He stated that Attorney General Holder will be traveling to Ferguson this week to meet with FBI investigators, DOJ personnel and community leaders.

Specifically regarding the looters and the protestors, he had this to say:

We have all seen images of protestors and law enforcement in the streets. It’s clear that the vast majority of people are peacefully protesting. What’s also clear is that a small minority of individuals are not. While I understand the passions and the anger that arise over the death of Michael Brown, giving into that anger by looting or carrying guns and even attacking the police only serves to raise tensions and stir chaos. It undermines rather than advancing justice.

Let me also be clear that our constitutional rights to speak freely, to assemble and to report in the press must be vigilantly safeguarded, especially in moments like these. There’s no excuse for excessive force by police or any action that denies people the right to protest peacefully. Ours is a nation of laws for the citizens who live under them and for the citizens who enforce them.

Valerie Jarrett explains what informs the view of the president:

He looks at this – I spoke with him this morning – his concern was clearly thinking about it as a perspective of a parent, and you want to know when you send your kids to school, when you leave your home they’re going to be safe,” Jarrett said in an interview with American Urban Radio’s April Ryan.

Obama’s priority is to keep the citizens of Ferguson safe, Jarrett explained, calling it “paramount” on the president’s mind.

–Dana

I want to add a few more of the president’s comments today. These were in response to a reporter’s question (at first link above):

I have to be very careful about not pre-judging these events before investigations are completed because although these are, you know, issues of local jurisdiction, you know, the DOJ works for me, and when they’re conducting an investigation, I’ve got to make sure that I don’t look like I’m putting my thumb on the scales one way or the other. So it’s hard for me to address a specific case beyond making sure that it’s conducted in a way that is transparent, where there is accountability, where people can trust the process hoping that as a consequence of a fair and just process, you end up with a fair and just outcome.

But as I think I’ve said in some past occasions, part of the ongoing challenge of perfecting our unions has involved dealing with communities that feel left behind who as a consequence of tragic histories often find themselves isolated, often find themselves without hope, without economic prospects. You have young men of color in many communities who are more likely to end up in jail or in the criminal justice system than they are in a good job or in college. And, you know, part of my job that I can do I think without any potential conflicts is to get at those root causes.

It isn’t often that I disagree with Ken White of Popehat. In the rare case where I do, I guess it’s not much surprise that the disagreement revolves around the criminal justice system. After all, I am a prosecutor (speaking as always on behalf of myself and not my office), while Ken is a defense attorney (albeit a former prosecutor).

Here, however, I seem to be having an easier time seeing the defense perspective in a criminal case than Ken does — and Ken seems, in my opinion, to be a little dismissive of one particular criminal suspect’s likely arguments. That suspect is a police officer: Officer Darren Wilson, who shot Michael Brown in Ferguson, Missouri.

Ken has a post on the relevance of the Michael Brown robbery video. He sets forth the applicable standards for how the admission of that evidence would be handled in federal court, where Brown’s shooter could face civil rights charges. I have no quarrel with the way Ken sets out the standards; in fact, I recommend his post as a clear exposition of the rules at play. He recognizes and sets forth the best argument for the admission of the evidence:

Here, the robbery may be relevant to state of mind. At least as I understand the facts, it’s not relevant to Wilson’s state of mind, because he didn’t know about the robbery when he shot Brown.2 But it could conceivably relate to Brown’s state of mind. Wilson might argue that Brown resisted him because Brown thought he was being arrested for robbery, and that Wilson’s story that Brown forcibly resisted arrest is more credible if Brown had a motive to resist.

You see that the bit about Wilson’s state of mind has a footnote (I love blog posts with footnotes!). Here’s the footnote:

This is still a bit cloudy. Ferguson PD’s public relations strategy is terrible and the information has leaked out bit by bit, sometimes in inconsistent ways. If Wilson knew there had been a robbery, and only realized Brown was a suspect sometime during the encounter, then what Wilson knew could be relevant to his state of mind, because his evaluation of the treat of violence posed by Brown would be relevant. But only what Wilson knew — not the videotape — would be relevant under that theory.

So far I am in full agreement. This is the analysis and those are the potential areas of relevance. It’s when it comes to predicting the admission of the evidence that I diverge from Ken’s analysis:

Were Wilson a normal mortal, I’d give this a 50/50 chance of being admitted in evidence. Since he’s a cop, and he wants it to come in, and cops generally get special treatment, I’ll give it a 75% chance of getting in. The judge might limit the evidence to reduce potential prejudice; for instance, the judge might only allow the government to introduce a summary of the robbery rather than the video.

Is the potential admission of this evidence really so controversial? Brown is alleged by the cop (as I understand it) to have wildly overreacted when contacted for jaywalking by a police officer. The witnesses against the cop portray Brown as not wildly overreacting, but rather being shot by an out-of-control cop. Clearly, a critical issue in any trial would be whether Brown behaved like a perfect gentleman or — well, like a potential robbery suspect with a reason to resist. In what world does evidence of a robbery that happened that day get excluded?? And if it were excluded, wouldn’t every fair-minded person be screaming from the rooftops about the injustice of it?

This doesn’t seem like a close call to me — and I’m surprised by Ken’s seeming implicit suggestion that the evidence really might not have significant probative value, but is likely to be admitted because (Ken says) the justice system tends to favor cops. Yes, it would be more likely that this evidence would be introduced in a trial of a police officer than of a random citizen who happened to shoot Brown. But that’s because Brown would be more likely to resist an officer with violence — because an officer is more likely to arrest him for what he just did. That’s not a pro-cop bias talking; it’s just common sense.

I’m even more puzzled by Ken’s next section, titled: “The Alleged Matter Shouldn’t Matter To How We Value Mike Brown’s Rights.” I’m fully on board with the sentiment expressed in that title. I love Michael Connelly’s books about Harry Bosch, whose motto is: “Everybody counts or nobody counts.” I believe in that philosophy and try to apply it in my own work, which often involves handling cases where a murder victim was a gang member. Whether Michael Brown did a robbery that day or not, if Officer Wilson shot him without a lawful right to do so, Brown’s rights were violated, and Officer Wilson should be held accountable.

But then, in the first paragraph of his analysis, Ken shifts the argument without acknowledging he is doing so, by saying:

But [t]he fact that Mike Brown allegedly robbed a convenience store shouldn’t matter to our analysis of whether it was acceptable for Darren Wilson to shoot him. The fact that it does matter is nearly everyone’s fault.

Wait a second. Of course the fact that Mike Brown allegedly robbed a convenience store matters to our analysis of whether it was acceptable for Darren Wilson to shoot him! We just got through analyzing why that is. Whether it was acceptable for Darren Wilson to shoot Mike Brown hinges on whether Brown posed a deadly threat to Officer Wilson. The fact that Brown might have thought Officer Wilson was arresting him for a recent robbery is directly relevant to whether Brown resisted Officer Wilson with deadly force. So it’s wrong to say that the alleged robbery “shouldn’t matter” to the analysis. It’s central.

Now, Ken goes on to explain that many people will discount Brown as a person because of the robbery, and to argue that such an attitude would be wrong. I agree with Ken here. But there is an attitude out there that the only reason anyone brings up the robbery, or alleged pictures of Brown throwing up gang signs, is to smear Brown, so that he will be seen as a person with less worth — and, who, consequently, “deserved” to be shot. Here is a tweet from Dave Weigel that prompted a few in response from me:

Oh, he flashed gang signs in photos! I guess he deserved to die. http://t.co/igcBue2hOD

— daveweigel (@daveweigel) August 15, 2014

That’s not the point. The “gang signs” issue is a little different from the robbery, but Ken portrays people who publish the pictures as “people gleefully digging through Mike Brown’s life to find things to dirty him up,” so I think it’s worth discussing for a moment. The pictures showing someone appearing to be Brown throwing gang signs do not, on their own, prove Brown was a gang member. But they could be relevant to such an analysis — and if an expert presented other evidence of gang membership by Brown, the pictures could well be quite convincing. Moreover, with proper expert testimony, gang membership could well be relevant to issues like motive — because, believe it or not, some gang members actually consider it a badge of honor to commit violent acts on peace officers. They gain notoriety that way. It’s not as likely a motive as evading arrest for a robbery, but it could be relevant.

Let’s get back to the main point. Whether Brown is a gang member, or just robbed a convenience store, does not change how we “value his rights.” But someone who just robbed a store doesn’t get to be treated the same way as a law-abiding citizen in every respect. For example: a guy who robbed a convenience store should be arrested, while a law-abiding citizen shouldn’t. Disparate treatment!!!!! You bet: and that’s exactly what we want cops doing. Cops should respect a man’s constitutional rights, whether arresting him for robbery, or contacting him for jaywalking — and nobody should be shot and killed in violation of the law. But robbery suspects don’t get treated the same, even if we “value their rights” the same — because they may have committed a crime, and people validly suspected of a crime are subject to treatment (like being arrested) that law-abiding citizens aren’t.

In the same vein, someone who shoots a robbery suspect should be held accountable to the same laws as someone who shoots a law-abiding citizen. But that doesn’t mean the two situations are exactly the same in every respect — and I’m not talking about the value of the victim’s life here, but about the facts that lead up to the shooting.

It matters that Brown just robbed a store before this shooting. It’s almost impossible to see how it couldn’t. And the people pointing this out are not racists, or people trying to trivialize the worth of Michael Brown’s life. They’re just applying common sense.