Ferguson’s grand jury announcement not to indict police officer Darren Wilson for the shooting death of Michael Brown should be viewed with deep skepticism. Common sense understanding of the law dictates that if Darren Wilson were not a police officer he would have been charged, at the minimum with a Manslaughter charge. A lack of indictment isn’t indicative that “the system works”, given that that if a private person had shot and killed another person a grand jury would have found an indictment justified. Instead this fits neatly into the pattern of favorable prosecutorial deference expressed in prosecuting police.
Police are not held to the same legal standards as regular private citizens.
Celebrating the finding of non-indictment is a celebrating the perpetuation of a legal double standard and is a perversion of justice. Given the substantially similar facts of the matter a private person would have been indicted and tried. As it has been pointed out by Five Thirty Eight, a statistical analysis firm, and a litany of legal commentators the announcement that Wilson will not be indicted stands as both unique and odd. Grand juries usually return indictments. In this high-profile case with evidence suggesting misconduct by Wilson, it is strange that no indictment was returned.
As analysts have begun to pour over the proceedings of the grand jury that the District Attorney Robert McCullouch appears to have coached Wilson through the indictment process as well as giving biased (against indictment) instructions to the jury, saying:
Probable cause to believe that he committed the offense, which means that he met all the elements of that offense, you remember that from your grand jury days. And you must find probable cause to believe that Darren Wilson did not act in lawful self defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. And only if you find these things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of these things. Because both are complete defenses to any offense and they both have raised in his, in the evidence. So any other questions about the law?”
Consider that the prosecutor is giving instructions to the grand jury that they can only return an indictment if it meets two criteria, one that Wilson acted unlawfully in self defense, and the other that the use of force was unlawful. He goes further to instruct that finding either to be a fact is like “proving a negative”, absent and therefore impossible. Neither of those criteria are entirely true, a charge such as manslaughter in the second-degree or negligent homicide obviously anticipates cases where death is not intended but incidental. The prosecutor is telling the jury that the accused was essentially acting lawfully. This is a either a willful misrepresentation of the law or McCullouch is not familiar with the law.
I am not satisfied that the narrative is complete in this case. As far back as August 15th voices were raised that Robert McCullouch was not an appropriate prosecutor for the case, critics pointed out that McCullouch’s father was a police officer that died in the line of duty, multiple people called for him to recuse himself and for a special prosecutor to be appointed instead. Erza Klein at Vox pointed out that Wilson’s testimony smacks of a fundamental incoherence, the statements are stilted and details are placed forward specifically to emphasize an image not just a cool-headed attempt at policing but an almost of Wilson as a victim himself.
Nick Wing and Jason Cherkis at Huffington Post point out the trouble isn’t limited to just one instance. The Grand Jury records are littered with instances of the prosecutor leading questions bad practices and contradictions. For instance Wilson’s testimony is that the altercation with Michael Brown and shooting took place within 30 feet of his vehicle; Michael Brown’s body was found almost 150 feet from the vehicle, the DA never bothered to point out any incongruence in facts whatsoever. Evidence that the prosecution was fundamentally flawed (if not derelict in its duty) is compelling enough for the American Bar Association to issue a press release requesting a federal investigation into the process.
What is most troubling is that this case is par for the course. Police routinely enjoy favorable prosecutorial deference not available to private persons. Extensive literature exists detailing the frequently informal relationships DA offices have with police departments. Sidney Powell’s License to Lie and Radley Balko’s Rise of the Warrior Cop offer revealing and intimate looks at back dealings in prosecutors’ offices, and the creeping militarization of police forces that have made for a particularly combustible situation. These problems are hardly academic concerns, as Balko demonstrates, that this process of alienation of police forces from communities tends to reinforce an adversarial attitude. The blurring of military tactics and policing rewards escalation of bad practices instead of defusing tensions. This contributes ultimately to the erosion of civil liberties in police interactions. More importantly this also makes communities less safe as residents are forced to rely on less formal systems to protect themselves from criminal activity.
As I discussed in an interview with economist Michael Thomas, policing in Ferguson is complicated by a lack of social structures: trust, community participation, and a sense of reciprocity are key systems that underpin effective policing, things sorely lacking in Ferguson. As Michael Thomas says:
If basic protections such as that of the person, and the more concrete rights such as individual and group safety are not first provided, discussions of higher order complex property rights such as shops and personal property cannot enter effectively into consideration. If property rights of the individuals on the ground are not protected, it demands a question: How can they ever hope to have a society that respects the abstract property rights of things and places?
Part of the more complex problem is that citizens perceive police as foreign to them, a threat, and incapable of offering the most basic services in fostering community.
Commentators that have pointed out that the Ferguson police department has recently been perceived as insensitive to community needs have a point, fines and predatory policing were the focus of much anger, and the shooting of Michael Brown was as if a spark had fallen on the tinder of a broken, contentious, and dysfunctional relationship with police.
Immediately after Michael Brown was shot and killed in August, a vigil, demonstrations, and eventually protests of police refusal to release the officers name and heavy handed tactics were organized. In direct contradiction to First Amendment rights of speech, assembly, and press proceeded to issue, police orders for demonstrators and press to clear the streets repeatedly. When direct orders failed police resorted to aggressive tactics such as marching on protestors, firing rubber bullets and tear gas into crowds and instituting illegal rules such as “No Standing”.
Ten tense, frequently tear-gas-filled, nights passed before the police chief named the offending officer, and twelve days elapsed before a police report was even filed, and only immediately before a court injunction compelled police to make the officer’s name public. At almost every turn the Ferguson police department adopted a hostile and antagonizing stance resulting in compounding and worsening tensions.
The problems reflected in Ferguson are not simply contained to some specific instance of racial tension, or just the Michael Brown shooting, the problems in Ferguson are reflections to two fundamental problems common, the distancing and militarization of police departments, and the informal backroom corruption of district attorneys and the “thin blue line” but also a reflection of the breakdown of social organizations. It is fairly obvious that the combination of militarized police responses to lawful demonstration, alienation of the community from the police, and a pattern of purposeful delays to regular investigations that the Ferguson incident remains emblematic of a deeply disturbing reality that our criminal justice system has ceased to apply a common set of rules to all people equally.