Sunday’s Cincinnati Bengals/Tampa Bay Buccaneers game ended in an unusual way. Cincinnati was leading 14-13 while the Buccaneers were driving with under 2 minutes to go. It was going to go down to the wire. All Tampa Bay needed was a field goal to win.
Tampa Bay quarterback Josh McKown completed a 20-yard pass to bring the Bucs to the 20 yard line, well within field goal range. Then something strange happened. Bengals’ head coach Marvin Lewis threw his red challenge flag to request a review. It was strange because coaches aren't allowed to throw a challenge flag within the last 2 minutes of both halves.
Lewis and the Bengals were charged a timeout for the inappropriate challenge. The delay in the game, however, allowed Lewis to draw attention to the fact that Tampa Bay had run the last play with 12 men on the field. Officials reviewed the play and indeed Tampa Bay had run the previous play with 12 men on the field.
While the call was being discussed CBS showed this wonderful graphic counting the 12 men who lined up for Tampa Bay.
This decision would not have been allowed last year. Previously, the NFL had a rule stating that if a coach challenged a play inappropriately, the play could not be reviewed. It was among the most despised rules in the game because it basically said a blown call could stand if a coach made a bad on-the-spot decision.
In 2013, the NFL got rid of this mistake by passing the Jim Schwartz rule. Jim Schwartz, head coach for the Detroit Lions, had lost a game by throwing an inappropriate challenge flag. Schwartz said he knew the rule but was caught up in the emotions of seeing a blown call go against his team.
The Jim Schwartz rule was viewed favorably and increased the credibility of the game. It allowed the officials to get the call right during yesterday’s Bengals/Buccaneers game.
As I was researching the history of instant replay, I started thinking about the NFL and our justice system and the situation in Ferguson.
The question that kept coming back to me was:
Why do I have more confidence in NFL officiating than I do in our justice system?
It may sound like an odd thing to say but I have a high degree of confidence in NFL officiating and I think most people would agree with me.
I don’t like officials. I don't think most people do. Or more accurately, we love to hate officials.
I also don’t like certain calls because they may go against the team I'm rooting for, but I usually have to admit that either a) the right call was made, or b) I couldn't have done any better.
This was the case in the Bengals/Buccaneers game. If I were a Tampa Bay fan (Full disclosure: I’m not and was rooting for the Bengals) I probably would have been mad that they lost the game. But I couldn't dispute that the Buccaneers ran the play with 12 men on the field.
In other words, if I were a Tampa Bay fan, I could still hate the officials and be mad they lost. But it would be hard to say they blew the call.
There are checks and balances for NFL officials
Did you know that NFL officials are rated on every single call?
There is an onsite observer at every game rating the officiating and games are reviewed afterwards by league personnel with officiating experience. Ratings are then rolled into a report and sent to an independent 3rd-party hired by the NFL.
These ratings are used to determine the officiating teams for the post season so there are many checks along the way. If a particular call is going to be downgraded or upgraded, it is done because consensus is reached among several NFL officials looking at the play together.
Ratings are sent to the officials and crew chief each week.
Officials watch the tapes with the reports and, if an official believes it is unfair, there is an appeals process.
Every level from employee (the referees, line judges, and officials) to supervisors (NFL personnel) to fans is involved and there are checks and balances throughout the process to make sure it’s fair.
There is a history of improvement
I can also look at the NFL and see how they've improved their process and rules over the years to make the officiating better. The best example of this is the instant replay.
Instant replay was first used in 1986.
The biggest problem with the way replay was initially used was that it was used solely at the discretion of the officials.
In other words, the people who were being questioned (the officials) were put in charge of the system to fix the problem. This often led to more problems.
The following Packers/Bears game was decided when officials first ruled that Don Majkowski had been across the line of scrimmage when he threw the touchdown pass.
Upon review, the call was overturned giving the win to the Packers. The way many fans saw it was that first officials gave the game to the Bears and then they gave it to the Packers.
Not only could official still get it wrong with replay, but the game was no longer about the teams, it could be about the officials. In 1992, the NFL got rid of instant replay.
In 1999, instant replay was brought back with a different idea. The idea was that coaches would now have two challenges per game (and they could win a third if both of the first two were successful).
This idea was brilliant. It put the decision to challenge with the coaches (in most situations anyways). Instead of detracting from the game, this added another dimension to it. Coaches could challenge a play. And they had to think about challenging because it would cost them a timeout if the challenge was incorrect.
The rule introduced an additional level of fairness by taking a decision out of the referees’ hands.
Sure, mistakes can still be made. I have confidence in the system though because I can see that the NFL has spent a significant amount of effort testing ideas out and working to make them better.
And yeah, people will still blame the refs when their team loses. I don’t expect human nature to change. The question is: will people without a stake in the game believe that either the right call was made or that they couldn't have done a better job themselves?
I have confidence in the system because I believe they have sufficient checks and balances in place. I haven’t seen a call in a long time that I both thought was wrong and where I thought I could have made a better call. There have been a few questionable calls but typically they were so close I could understand how the officials made the call.
Now let’s look at our justice system in light of the recent Ferguson decision
On November 24th, St. Louis County prosecuting attorney Robert McCulloch announced that a grand jury decided not to indict Officer Darren Wilson for killing Michael Brown.
This may not seem unusual except that, as outlined by fivethirtyeight, grand juries usually always decide to indict. In the most recent year for which there’s data, 2010, only 11 out of 162,000 decisions failed to bring an indictment. It’s extremely rare not to issue an indictment.
One of the rare exceptions to this rule are police shootings. In 81 police shootings between 2008 and 2012, only one grand jury returned an indictment.
In cases involving police officers, fivethirtyeight highlights several reasons why decisions could be different:
- Juror bias towards the police.
- Prosecutor bias towards the police. (Prosecutors depend on police officers to help make their cases and therefore there may be pressure to return the favor.)
- The prosecutor felt compelled to bring the case before a grand jury despite weak evidence because of the high profile nature of the case.
- Some combination of the above.
I’m not going to speculate on any of the reasons why. The problem is that there are two systems of justice. One, for police officers. And one for everyone else. That is, I have a very low degree of confidence that we have a fair justice system.
Kaimpono Wenger actually argues in The Daily Beast that most people would be better off if they received Darren Wilson grand juries. More people might not face indictments.
The question remains though. Why two systems? One for police officers and one for everyone else?
The purpose of grand juries is to determine whether or not there is sufficient evidence for a trial. It is not to determine guilt or innocence. Yet Robert McCulloch chose a completely different approach than he would normally take. He didn't instruct the jury at all about possible charges they could seek. He presented all of the evidence for the defense. He chose to let Darren Wilson testify (defendants usually don't testify at grand jury proceedings because they aren't allowed to have defense attorneys present and prosecutors will eat them alive - if, they prosecute).
In other words, he didn't prosecute.
If you listen to his rather odd press conference, he sounds like a defense attorney:
Eyewitness accounts must always be challenged and compared against the physical evidence. Many witnesses to the shooting of Michael Brown made statements inconsistent with other statements they made and also conflicting with the physical evidence.
In a typical grand jury proceeding, all that has to exist is some evidence to support the charge. That's the extremely low bar prosecutors have to clear. It's why grand juries return indictments 99.99% of the time. Prosecutors aren't supposed to challenge evidence. That's the purpose of a defense attorney during the trial.
Why was Darren Wilson allowed to testify in his defense during the grand jury trial?
As Lisa Bloom, MSNBC’s legal analyst put it:
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.
According to former prosecutor and law professor at Georgetown Paul Butler,
McCulloch is 0-5 in grand jury cases involving police officers shooting unarmed people.
Several of McCulloch’s family members were police officers and in the past he’s acted less like a prosecutor and more like a public defender when it comes to police shootings. He was asked to step down in advance due to this perceived conflict of interest. McCulloch refused.
Is it any wonder there’s a lack of credibility when it comes to police shootings?
Are there any checks and balances?
If there are, it’s not just that I don’t see them, but that they don’t seem to be working.
It looks like Robert McCulloch decided he didn't want to seek an indictment so he brought the case to a grand jury and then influenced the grand jury to come to the conclusion he wanted. In other words, it looks like the purpose of the grand jury was more to absolve everyone from responsibility rather than to seek an indictment.
Officer Wilson is off the hook for the killing.
McCulloch issues his decision during the evening to ensure maximum rioting and shift the attention away from the decision.
I don't have much confidence in Internal Affairs departments within the police force. Even if they do their job, they don't inspire confidence because they are internal and subject to internal bias. It's the equivalent of putting NFL officials in charge of officiating themselves.
There's no civilian oversight of any kind.
If there are checks and balances, they sure don’t seem to be working. No one seems to be in charge and everyone seems to be pointing fingers at everyone else and even the media does little in the way of presenting a coherent narrative. Most media outlets simply print what all the finger pointers say.
Checks and balances are either non-existent or ineffective.
Are things getting better?
It doesn't look that way.
12-year old Tamir Rice was just shot in Cleveland. A grand jury also failed to reach any indictments for the police officers who killed John Crawford in Beavercreek, OH.
Last year, the FBI tallied 461 “justifiable homicides” committed by law enforcement. This is the highest number in two decades, even as the nation’s overall homicide rate continues to drop. And these statistics are questionable because they are voluntary. A sign of just how not serious we are about the problem is that we don’t even keep official statistics on police shootings. People have to do this on their own.
I have little confidence things are getting better.
What we could learn from the NFL
One of the big differences between the NFL and our justice system is accountability. The NFL recognized that credibility was important and put in place a credible system. I have faith in the NFL’s system because I can see the checks and balances and I've seen improvement over time.
This doesn't seem to be the case within our justice system. Checks and balances appear ineffective if they exist at all and the problem doesn't seem to be getting better.
The Michael Brown shooting and subsequent fiasco illustrates the problems perfectly. I have little confidence the system worked because I believe I (or any citizen) could have done a better job prosecuting the case. Not because I'm a great prosecutor or even any kind of prosecutor but because I would have sought an indictment. I wouldn't have changed the process to defend Darren Wilson.
If someone else (without the history and perceived bias of Robert McCulloch) had been in charge, outside observers without a vested interest would have more confidence in the decision.
As Michael Bell wrote after his extensive research into police shootings:
The problem over many decades, in other words, was a near-total lack of accountability for wrongdoing; and if police on duty believe they can get away with almost anything, they will act accordingly.
Now I know there’s huge differences between the NFL and our justice system. One of the reasons we have such confidence in NFL officials is that we are also watching the game. We typically have access to the same instant replays that officials have. We have no such luxury in our justice system.
But perhaps there’s some things we could learn from the NFL. Personal police cameras could act like instant replays. I think they would help in re-establishing credibility.
What we also know from the NFL is that allowing officials to be in charge of policing themselves doesn't work. We end up with two justice systems: one for insiders and one for everyone else. A system of oversight and involvement is needed for people to have confidence in the system. When it comes to police shootings of unarmed people, a system of outside or public review like the one passed in Wisconsin would help re-establish credibility.
If we can fix the NFL, we can fix our justice system.
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David Akadjian is the author of The Little Book of Revolution: A Distributive Strategy for Democracy.