Just Shut Me Up

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.