November 25, 2014--The (Sort of) Good News From Ferguson, Mo

Yes, there is some good news from Ferguson. Keep reading.

Back in 1985, the then chief judge of he New York court of appeals, Sol Wachtler, famously said that an even half-competent prosecutor, because of the nature of how the grand juries function, could have them "indict a ham sandwich."

This is because it is easy to demonstrate "probable cause," the threshold grand juries are instructed to follow when considering an indictment. "Probable cause," not the much more demanding "beyond a reasonable doubt" that a conviction requires.

The justice system is structured so that indictments are relatively easy to obtain but convictions aren't.

But the grand jury in Ferguson, Mo, because of the behavior and lack of clear instructions from the prosecutor failed to indict Darren Wilson, the white police officer who shot and killed Michael Brown,  an unarmed African-American teenager back in August.

From his statement late yesterday and reports from legal experts who over-night examined the grand jury evidence that was released, it is clear the prosecutor, in effect, conducted a version of a full trial; but a trial in which the interests of the deceased were not adequately represented nor was there compelling evidence that the side representing the state (the prosecutor) aggressively made the case for indictment.

Quite the opposite.

In his formal statement announcing that the grand jury failed to indict Wilson, St. Louis County prosecutor Robert McCulloch, said that the main reason there were no indictments was because there was so much "conflicting evidence."

Well, that's true in every judicial situation. There are virtually no open-and-shut cases. A trial by its nature deals with conflicting evidence. The prosecution cites evidence and the defense attempts to refute it with "conflicting evidence."

At the grand jury "trial" of police officer Wilson, the cards were stacked against the potential state's case in that, by presenting so much conflicting evidence to the grand jury, the prosecutor, rather than representing the interests of the state (the traditional role for prosecutors from common law times until today) in effect acted as it were the defense attorney for the potentially accused.

(It may not be irrelevant to note that McCulloch's father was a police officers who was killed, when McCulloch was 14, in an incident that involved an African American kidnapper.)

Further, the prosecutor gave the grand jury a checklist of five possible levels of indictment, from murder-one to involuntary manslaughter. Unlike every other grand jury with which I am familiar (and I have served on two, including a so-called special grand jury that dealt with and handed down more that 25 indictments for the New York City version of the Crips gang), this time apparently McCulloch just gave them the list and did not make recommendations about what he felt would serve the interest of justice.

No wonder it took the grand jury more than two days to do nothing. They sat through a quasi trial with no opening or closing statements that could help guide their thinking and no guidance from the prosecution about how to think about the potential charges.

So it is no surprise that this sad time the ham sandwich walked.

Then, where's the good news?

Think back not to many years about similar situations in too much of America. Situations in which white men could maim, torture, and kill black people (usually young black men) with virtual impunity.

How many clear situations of murder with intent went uninvestigated or half-heartedly looked into? There are enough outrageous examples from my lifetime alone to fill this page.

And not just cases from the South. Even in New York City, the self-proclaimed center of liberal thought where we take pride in our open pursuit of justice, the so-called Central Park rapists were recently released from years in jail because it finally became clear that their trials were rigged by the prosecutors who did not do their due diligence when faced with the rape of a white women jogger by an alleged marauding band of young men of color. And how many white police officers have shot and killed young African-American boys and men in New York and have been under-prosecuted? One such killing occurred as recently as last week in a public housing project in Brooklyn. We'll see how justice takes its course over the next number of months.

But consider the progress. Even in Ferguson.

As flawed as it was, at least this time there were months of investigation and pressure to pursue justice. The system may have failed, but what happened in Missouri (and matters are not concluded--there may very well be a U.S. Justice Department civil rights case that could lead to indictments and a criminal trial), this case was not handled as equivalent ones have been through our tortured racial history.

So as we watch the media show endless footage of the telegenically burning police car (thereby abetting the narrative that "they" are dangerous and must be controlled and if necessary repressed by civil authorities), think back about where we have been and how far we have come. Including who is our president and attorney general.