Impressions on Ferguson

I haven’t commented on the situation in Ferguson until now because, while the tragedy aroused strong feelings, the facts were contested and unclear. Now that the grand jury has made its decision and more information has been released, three impressions have solidified in mind.

First Michael Brown was a thug, or at least acted like a thug on the day he died, and like stupid thug at that. But let’s get this straight. This doesn’t mean that by any stretch of the imagination this means that he deserved to die. We don’t have the death penalty for acting like a thug in this country.

However, that he acted like a thug I don’t believe that there can be any doubt. There is video evidence that he stole a handful of cigarillo (small cigars) from a business and that when the store owner tried to stop him, Michael made use of his 6’ 6”, 300 lbs. strenght to swat the small man aside. Then he and a friend who had accompanied him in the store walked away right down the middle of a street. (Now if I had just committed strong armed robbery, the last thing I would want to do is call attention to myself by walking in the middle of a street.) Then when a police car came along and police officer Darren Wilson tells them move to the sidewalk, instead of doing so an argument ensues and at some point a scuffle breaks out. (Again, if I had just been involved in a crime, regardless of how a police officer talked to me, I certainly wouldn’t want to call attention to myself by defying cop.)

So here is a guy who has just graduated from high school and has his whole life in front of him and he is endangering his future by performing senseless acts. Why?!! It is certainly possible that he was of the opinion that his huge statue gave him some sort of immunity that ordinary people don’t posses. Maybe he was also showing off in front of his friend. Maybe he had such a low regard for the local police that he found it necessary to defy them. It is hard to know for sure why he displayed that kind of attitude, but it is fairly safe to say that his attitude contributed to getting into a confrontation with a cop in the first place. Whether he should have died as a result of that confrontation is an entirely different matter.

Second, it also rather obvious that even before the incident, relations between the Ferguson police force and the community it is pledged to protect was extremely poor. The fact that composition of the police force (mostly white) didn’t come close to matching that of the population (60% black) didn’t help, but it obviously went much deeper than that. Like many communities around the country, especially those with large minority populations, the members of the community simply did not trust the police. They had no confidence that black members of the community would be treated fairly. This systemic condition is still being addressed and will not be solved anytime soon.

Third, it was also apparent that the County Prosecutor Robert McCulloch did not want to indict Officer Wilson, but he also did not want to take responsibility for that decision, which he could have made on his own. So instead he volleyed the ball over the net to the grand jury which couldn’t hit it back.

There were many early indications that McCulloch might be too loyal to the police in the St. Louis area to handle the case fairly. Over 100,000 people signed a petition asking that McCulloch be replaced by a special prosecutor. Among the reasons, McCulloch’s brother was a police sergeant with the St. Louis Police Department as was his father before him. His mother was a clerk for the Homicide Division for 20 years. His father, Paul McCulloch, was killed in the line of duty by a black man when Robert was 12. Of course as a prosecutor, he also worked closely with the police forces of the St. Louis area and his handlingsw of two previous high profile black verses police cases were questionable at best.

McCulloch had several options opened to him under Missouri law. He could have stepped aside as requested. He could have unilaterally decided not to prosecute Wilson if he felt that the evidence did not warrant prosecution. He could have requested a pretrial hearing before a judge to determine if the defendant should be held over for trial – this is the method which is the most commonly used in Missouri – or he could take the case before a grand jury. Generally if a prosecutor wants an indictment from a grand jury, he can get one. The old saying that a grand jury would indict a ham sandwich is not far off. The reason being that while deciding on whether there is probable cause to proceed with a trial, a grand jury generally hears only the prosecutor’s side of the case; the defendant’s lawyer is not allowed to participate. Defendants can ask to be allowed to testify, but normally they don’t on the advice of their attorneys because, with out the protection of their lawyers, their stories are likely to be torn apart under questioning by the prosecutor and the jury members. Also, if they are indicted anyway, they would reveal the defense strategies they will use during their trials, giving the prosecutors an advantage.

McCulloch made use of the last option, except with a very big twist. In highly usually maneuver he elected to put the case before the grand jury, but without pressing for an indictment. Normally a prosecutor only presents select bits of evidence which would mostly likely to convince the grand jury that there is probable cause to indict. Instead McCulloch fed all of the evidence to the grand jury and allowed all of the witness to testify and then let the jurors decide whether to indict or not. Officer Wilson, of course, gave his testimony before the grand jury, but instead of facing tough questions as normally would under the circumstance, according the transcript of the jury proceedings which has been released, McCulloch only asked Wilson softball questions which helped him tell his story. On the other hand McCulloch actively sought to discredit other witnesses who disagreed with Wilson’s account. In the final analysis the jury members voted not to indict Wilson.

Now, on the surface this seems to be a fair way to do things. Put everything on the table and let the grand jury decide. What’s not fair is about that? Well, that’s not how Robert McCulloch normally proceeds. In fact in the 23 years he has held the post of County Prosecutor, he has never proceeded in this manner in any other case. (Of course in his entire time in the job, he has never charged a police officer with a crime or with overstepping his/her authority.) Ask yourself, if Michael Brown had been accused of killing Officer Darren Wilson under similar circumstances, do you think that McCulloch would let a grand jury decide if Brown should be charged or not? Now I have to admit that since I don’t have, and probably will never have all of the facts, I don’t know if Darren Wilson is guilty or not, but according to experts in grand jury proceedings, McCulloch could have persuaded the grand jury to indict Wilson if he had wanted to. He could have shown probable cause.

In such a high profile case the appearance of fairness is as important as fairness itself. McCullough obviously did not want to charge Wilson with a crime, but he knew that if he simply refused to proceed without charges, all hell would break loose. So instead he threw the case over the wall to the grand jury to accomplish the same thing without having to accept personal blame. That is what has many of the residents of Ferguson and people around the country upset. McCullough should have taken the opportunity to step aside and let a special prosecutor with no ties to anyone involved handle the case. However, he then he would have had no way to affect the outcome, so that was not an option for him. When he failed to do step aside, the appearance of fairness was forever lost.

The fact the Darren Wilson was not charged in connection with the killing of Michael Brown will not soon be forgotten, but neither can it be reversed. However, if this moment is not used as to as a catalyst to bring about steps which will improve the relationships between police departments across the country and the minority populations which they serve, that will be a second tragedy.

Cajun   11/25/14

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