Just imagine, if you will, that your
brother is skateboarding down the sidewalk when a police officer
orders him to get off the sidewalk. When your brother, surprised,
spins around the officer sees the AirSoft pistol in his hand and,
mistaking it for a real weapon, shoots and kills him. Yes, an
unlikely scenario but one with precedent and, in light of recent
events, not so farfetched. Has this officer overreacted or was he
justified in the killing because he perceived that he was threatened
with death or injury. What is the proper forum for determination?
Is it a matter of public interest or should it be determined behind
closed doors and in secret? Should the victim's family (that is the
family of the one who was killed) be able to closely examine the
evidence? Who represents the interests of that family and the one
who was killed? Who is the victim and who is the accused?
I try to avoid arguments that involve
the founders but sometimes one has to look at the basis for the
provisions of our legal system. Under British rule a person could be
accused, locked up for an indefinite period and be tried without ever
knowing who had accused him or having he opportunity to defend
himself by examining the witnesses against him. These considerations
were the basis for the creation of our system of hab
eas corpus,
presumption of innocence, right to confront one's accusers and a
public trial by a jury of peers. The aim was to create a transparent
system of jurisprudence that was open to be seen and appreciated by
the public so that everyone could see that justice had been addressed
and, by doing so, give the public confidence in fairness and
lessening the chance of a public uprising. This is what was denied
in Ferguson, Missouri and the perception of the African-American
community there is that this kind of behavior is the norm rather than
the exception. True or not, perception is important here.
In the American system of jurisprudence
a sitting Grand Jury is perhaps the most powerful body that can
affect your life. It has the power to charge, investigate or indict
to trial practically anyone for anything. It also has the power to
refuse to do so. Prosecutors have the power to charge presumed
offenders on their own or to convene a Grand Jury to do so. It has
been famously said that a prosecutor can get a Grand Jury to indict a
ham sandwich if he wishes. The reason for that is that the
prosecutor will usually only present evidence of guilt and withhold
exculpatory evidence and there will be no defense witnesses or cross
examination. No attorneys present to represent the victim. That was
not done here in Ferguson.
So, who speaks for Michael Brown, the
kid who was killed? Admittedly, the videos and eyewitness reports
make it difficult to feel any sympathy for Brown but that is not the
point. All the Grand Jury was charged with was the investigation as
to whether Officer Wilson acted within his authority. The real
question is whether or not justice was served in a public manner
concerning the death of Michael Brown and that deserved a public
trial. One in which evidence is presented and witnesses are
cross-examined and a jury decides to convict or exonerate. That is
the minimum that was necessary to quell the suspicion that Brown's
death was business as usual and a whitewash by the law enforcement
and judicial system. It is the minimum any of us would expect if it
were our son or brother lying dead in the street. That was not done
in Ferguson.
I don't mean to intimate that the Grand
Jury acted improperly since that is almost impossible given the scope
of the powers granted to that body. Did they err in choosing not to
indict Officer Wilson and passing the choice of guilt on to the trial
court? Maybe. But what about the prosecutor? I find it implausible
that he did not intend that this decision be the result. Prosecutors
learn early on how to best bring a case to trial and the probability
of conviction. He knew that at a trial he would have to speak for
the victim, Michael Brown, and he did not want to do that. Whatever
his culpability he most certainly has violated the spirit of the law
if not the letter of the law and this is what the people of Ferguson
and elsewhere are reacting to. If the population can't feel that the
law is being administered impartially to all citizens then there
exists no rationale for support of the law. If it is perceived that
favoritism is being shown to some and not others then the only avenue
for recourse is protest since the system has failed to address their
concerns. This is what the hubbub in Ferguson and elsewhere is
about.
Our system is not perfect but it is
accepted because there is a presumption of fairness. People can
accept system failure if the perception of fairness survives. This
should have gone to trial where the public's concerns could be
addressed publicly in an impartial court. Where witnesses for the
prosecution and defense could have been presented and testimony
examined. Then guilt or innocence could have been established by a
jury of peers and that would have largely dealt with the perception.
Now none of these concerns can be addressed. Maybe the Feds will
bring a civil rights suit but the bar is very high for that. Maybe
the Browns will bring a wrongful death suit which has a lower threshold for proof and that is likely but the needs of the
citizenry will never be met and that is unfortunate.
This is My Take. If this prosecutor
will handle whether or not to indict the same way in the rest of his
cases I will shut up. I feel certain you will be hearing from me for
some time yet.
