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The Marshall Project has this excellent summary of the grand jury proceedings that concluded yesterday with the return of no indictment of Ferguson police office Darren Wilson for the death of teenager Michael Brown.

The summary has links to many relevant stories and sources, including legal commentary on the unusual nature of the prosecutor’s handling of the proceedings — pointing out as some experts have that prosecutors know how to get an indictment when they want one.

Referring to St. Louis County Prosecutor Bob McCulloch’s quick release of grand jury testimony and his unusual failure to get an indictment in the case, writer Andrew Cohen says:

The release of the evidence may or may not change the minds of people around the world who have been waiting in suspense for the past 108 days for this story to come to some sort of resolution. But it is unlikely to change the view of some legal observers that McCulloch manipulated the result here by managing the process. This was not a typical grand jury proceeding in which only a few witnesses testify, the prosecutor tightly controls what grand jurors hear, and the suspect does not testify at length about why he should not be charged.

How do we know it is rare for a prosecutor to manage a grand jury in this fashion? We know because the grand jury process has become pro forma in most jurisdictions and because prosecutors almost always get an indictment from them when they want one. On the federal level, Five Thirty Eight reported last night, “U.S. attorneys prosecuted 162,000 cases in 2010, the most recent year for which we have data. Grand juries declined to return in indictment in 11 of them.” That’s about 0.01 percent of the time.

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VoteLate yesterday, the state Board of Elections completed the recount of votes cast in the Supreme Court race between sitting Justice Cheri Beasley and her challenger, Winston-Salem attorney Mike Robinson, with Beasley coming out ahead by more than 5,400 votes.

When Robinson initially requested the recount, the tally showed Beasley ahead by 5,427 votes.  Final recount totals gave Beasley a 5,410 vote margin.

The Beasley win moves the balance on the court a little more to the center, with four Republicans  (Chief Justice Mark Martin and Justices Robert Edmunds Jr., Paul Newby and Barbara Jackson) and three Democrats (Justices Robin Hudson, Beasley and Sam Ervin IV).

Justice Beasley had the incumbent advantage after having been appointed to the court in late 2012 by outgoing Gov. Bev Perdue, but Robinson had the backing of well-heeled conservative donors pushing for Republican dominance on the court.  He also got a last-minute boost from the Washington, D.C.-based Republican State Leadership Committee, which threw in $400,ooo in October to blitz the “I Like Mike”  jingle on television during the last week of the campaign.

According to state Board of Elections public information officer Josh Lawson, state law gives Robinson the option of demanding a second recount in a sample of precincts, which would be conducted by the hand-to-eye recount method.  He has 24 hours from the completion of the first recount to ask for that, making his deadline today at 7:48 p.m.

UPDATE:  Per NPR’s Jorge Valencia, Robinson has conceded the race to Justice Beasley. See below:

npr

And as now confirmed by the SBOE, per below, Beasley has won the race.

SBOE

 

Click here to see the final recount numbers.

News

VoteWhat were state GOP lawmakers’ intentions when they enacted House Bill 589, one of the most restrictive voting laws in the nation?

That’s the question the groups challenging the law want answered by legislators they served with subpoenas last December, asking for emails, letters, reports and other records used when pushing for voting law changes in 2013.

Plenty has transpired since then. The voting cases pending in Winston-Salem ran through the federal courts all the way to the U.S. Supreme Court on the issue of a stay of the new law’s provisions, pending the November elections.

Now though the court and the parties are digging in as a mid-summer 2015 trial date looms.

And in an order issued yesterday, U.S. Magistrate Judge Joi E. Peake told state lawmakers they could no longer hide behind a claim of legislative privilege and withhold certain categories of communications relevant to the claims asserted in the pending cases.

Among the documents sought are lawmakers’ communications with constituents, state agencies, lobbyists and political organizations regarding the reasons for voting law changes; studies and reports on voter fraud, race and ethnicity of voters; and analyses of costs associated with administering the new provisions.

State lawmakers’ files may be one of the few sources of proof for plaintiffs hoping to establish that those legislators had a discriminatory purpose in enacting House Bill 589 – a critical element in proving certain of plaintiffs’ constitutional claims and in obtaining future preclearance relief under Section 3 of the Voting Rights Act.

In her ruling, Peake held that communications between legislators and third parties regarding House Bill 589 are not privileged and must be disclosed. “Third parties” would include any person or group beyond lawmakers and their staff — constituents, state agencies, lobbyists and political organizations, for example.

Peake also ruled that communications between lawmakers and outside counsel before the lawsuits were filed on August 12, 2013  are not automatically privileged and may also be subject to disclosure. The state defendants must provide a log of any such communications being withheld as privileged, with sufficient detail  for the parties and the court to assess whether they can be withheld or should be produced.

Communications between lawmakers and staff, however, remain privileged and need not be identified on a log or otherwise disclosed.

The state defendants still have the option of objecting to Peake’s order and asking for a review by the judge handling the cases, U.S. District Judge Thomas Schroeder.

If that happens, it may be January before documents start arriving, according to Allison Riggs, an attorney from the Southern Coalition for Social Justice representing groups challenging the law.

“We’re pleased with the ruling,” Riggs said. “We’re eager to get this relevant discovery and build the case for trial next summer. The state needs to comply with the order and produce this discovery quickly.”

For more background on the dispute over documents in the voting cases, read here.

Read Judge Peake’s order here.

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UNC Not Fair

(Source: UNCnotfair.org)

Edward Blum must have found his plaintiffs.

Blum is the retired stockbroker who, with the financial backing of several conservative donors, has been pumping named plaintiffs into some recent high-profile civil rights challenges that have landed before the U.S. Supreme Court — namely, the Fisher v. University of Texas affirmative action case and the Shelby County v. Holder voting rights case.

Over the past year or so, through his Project on Fair Representation, Blum has targeted the admission practices of  three universities — UNC-Chapel Hill, Harvard University,and the University of Wisconsin — inviting students who were rejected by those schools to contact the project.

On websites set up for each school — at UNCnotfair.org, for example — the group poses this question: “Were you denied admission to the University of North Carolina? It may be because you’re the wrong race.”

Today the group announced the filing of two separate lawsuits against Harvard and UNC – Chapel Hill, respectively, alleging that the schools unlawfully used racial and ethnic classifications in admissions.

The UNC complaint, filed in Greensboro, begins with this: “This is an action brought under the Fourteenth Amendment and federal  civil rights laws to prohibit UNC-Chapel Hill from engaging in intentional discrimination on the basis of race and ethnicity.”

The cases represent the first step in a long march towards a hoped-for U.S. Supreme Court ban on all forms of racial and ethnic preference in university admissions, according to SCOTUSblog’s Lyle Denniston:

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

***

[T]he Harvard and UNC lawsuits clearly were prepared to build a case in lower courts so that, perhaps two or three years from now, the lawsuits could reach the Supreme Court for an ultimate test of affirmative action, at least in college admissions.

In the lawsuits, brought under the name “Students for Fair Admissions Inc,”  .”The lawsuits do not ask the courts to abandon the idea that racial diversity among college students is a valid educational goal.  Instead, they contend that diversity can be achieved by race-neutral alternatives, so public colleges and those that receive federal funds should be ordered to end, altogether, any use of race in the process.

Read the full UNC complaint here.

 

 

News

Winston-Salem attorney Mike Robinson, who challenged sitting Justice Cheri Beasley for her seat on the state Supreme Court, has asked the state Board of Elections for a recount of the votes cast in that race, according to the board’s public information office, Josh Lawson.

The latest posted results from the SBOE show Beasley ahead by 5,427 votes — with 1,239,217 votes to Robinson’s 1,233,790.

State law allows a candidate in a statewide race to request a recount when the difference between the votes cast is one-half of one percent (0.5%) or 10,000, whichever is less.

In an email Lawson added:  “We’ll be working on guidance to the counties so that they can have the recount completed by canvass next Tuesday.”

The board is expected to issue a statement on the recount shortly.