FERGUSON - JUST TO BAD TO BE TRUE

The decision of the Grand Jury in Ferguson, Missouri arising out of the death of an unarmed black youth, shot by a white policeman, came as no surprise to the protestors gathered to hear the prosecutor’s announcement. Everyone in the crowd that was interviewed expected it. The community had precedents to go by that the Grand Jury’s finding would be that there were no grounds whatsoever to believe that Officer Wilson had even acted recklessly in killing someone, whose only possibly reason for his initial apprehension was walking in the middle of the road. In addition the protestors had the probable finding telegraphed to them prior to the announcement by leaks from the Grand Jury, declarations of a state of emergency in Missouri in conjunction with appeals for calm by the Governor of Missouri and the Mayor of St Louis and the calling out of the National Guard. They had to know what was coming and after reading this blog it will become obvious why.

Before continuing Jay H. Ell would like to make it quite clear that he is not tarring all police officers and their departments with the same brush. He has worked in a small town in Illinois for decades and the officers are part of the texture of the community and are seen positively by all and sundry. Their culture is service and they are empathetic to the needs of the less fortunate. In discussions with them they are more than aware of their responsibilities and the trust society places in them.One only has warm fuzzies in relation to them as hundreds of communities across the country must have towards their protectors. However there is an ongoing problem in some communities where the African American citizenry exhibit mistrust and suspicion to their predominantly white law enforcement agencies.

THE ANATOMY OF A BOGUS INVESTIGATION

The choreography of the whole Ferguson production - from the prosecutor refusing to lay any charge when probable cause was staring him in the face, to calling a Grand Jury and then failing to give them any lead, to blaming the press and the social media for the uproar over the whole calamity, to maintaining that as there was conflicting evidence there could not be an indictment, (conflicting evidence is what trials are supposed to resolve), to falsely implying that all the witnesses that contradicted Officer Wilson’s story had had their versions repudiated by the physical evidence, and on and on - was a disgrace and has to be indicative of an underlying culture so pervasive that even those that are a part of it are unaware as to how they appear to society in general, and the African - American community, in particular.

Obviously  a culture of service to the community is woefully lacking in Ferguson from the police force to the prosecutor's office of St Louis County, to the Governor. The fact that it was common knowledge, in the Ferguson community, that Prosecutor Robert McCulloch was biased and bigoted should have been known by the Missouri Administration and in fact it was. Governor Nixon, more than mindful of the opprobrium surrounding McCulloch stated that he was not going to ask McCulloch to withdraw as Prosecutor, but it was up to him to recuse himself. The Governor further opined, “This is a big matter. It is important we get it right.” McCulloch defiantly replied that Nixon “Should man up” and decide if he wants him to stay on the case. For an assistant County Prosecutor to tell the Governor of the State to jump in the lake, which the Head of the Great Commonwealth of Missouri then proceeded to do, he has to have some powerful backing of people who support his modus operandi.

Jay H. Ell is sure now that Governor Nixon wishes that he had “manned up” as there are nights of rioting in Missouri with damage to its economy and reputation. Investigations are pending by the Federal Government as to whether there was in fact a culture and a pattern of discrimination in Ferguson. Close on two hundred towns in the USA are holding protests - nearly all peaceful. Ferguson Missouri has become the Selma Alabama of the twenty - first century.

THE NORMAL PROCEDURE IN PROCURING AN INDICTMENT

For the uninitiated they are two ways that the prosecutor could initiate a charge.  (Even McCulloch knew that he couldn’t just toss off the death of an unarmed youth who had been shot twelve times, most of these at a distance of a one hundred and thirty feet away). In addition there were conflicting stories as to the events leading up to the teenager’s death.The choice he had was to have had public preliminary hearing in a Court of Law, which would be presided over by a Judge or a secret Grand Jury hearing, presided over by him. Either of these in the normal course of events would have lead to an indictment. Whether this was fair or not to Officer Wilson the scenario screamed out for the weighing of the facts by a trained fact finder and an assessment by a jury of his peers. In both a Grand Jury hearing and  Preliminary Hearing proceedings the prosecutor leads a minimal amount of evidence, just enough to show, “probable cause”, which means that a reasonably intelligent person believes that an accused person has committed a crime.

Grand Jury

The route which McCullough chose is normally the easiest and quickest path to indictment. Nate Silver uncovered that in 162,000 Federal cases that had a Grand Jury hearing only 11 did not lead to an indictment. A saying that has become part of folklore is attributed to former Chief Justice of New York Wachtler is that a prosecutor could persuade a Grand Jury to indict a ham sandwich. So in the normal course of events when the prosecutor choses the Grand Jury path to indictment he is taking the easy route. Defense attorneys have then no idea of what evidence has been led and have no opportunity to cross examine anyone. 

The bar for probable cause is very low and was articulated in clear cut terms by none other than Supreme Court Associate Justice Scalia in 1992 in the litigation - The United States versus Williams. In the Court’s majority decision he opined that, the onus was not on the grand jury to enquire why a charge should not be laid or to examine the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. This law dates back to 1778. “Thought Progress” comments that neither in this country nor in England has the suspect under investigation by the grand jury ever been thought of to have a right to testify or to have exculpatory evidence presented.

All any other prosecutor would have done in the circumstances of the Michael Brown shooting would have been to lead evidence to the effect, for example, that twelves shots had been fired some from a hundred and thirty feet. That there are a number of witnesses including a friend that was with him that testified that Wilson had fired unprovoked and that he had acted in an aggressive and demeaning manner from the start.

Preliminary Hearing.

The bar for an indictment is equally low in a Preliminary Hearing however it is before a Judge. Defense attorneys prefer this as the Prosecutor presents evidence which is subject to cross examination. The defense has an opportunity to argue that the indictment should not be allowed. The defense rarely does too much as they prefer to save their arguments for the inevitable trial. 

So a prosecutor would have presented witnesses, in open court, to verify the physical evidence, such as 12 shots fired and the evidence of some of the bystanders, particularly Brown’s friend, Dorian Johnson, who incidentally is highly credible in front of the camera, that the Police Officer was not being threatened by Brown as the latter had already mortally wounded him.

Role of the Prosecutor.

In America, as in most English speaking countries, the role of the prosecutor is adverserial. While he is not expected to be biased or unfair in his/her presentation of evidence he is to vigorously pursue a conviction.  All the mandates to the prosecutor are for the protection of the defendant as it is not be envisaged that the prosecutor would be acting on behalf of the defense and abandoning his prosecutorial responsibility.  Nowhere, but nowhere, is the prosecutor expected to act as counsel for the defense. In fact certain legal commentators expand the prosecutor’s role of protecting the integrity of the State to taking into account the victim’s rights and advocate for him or her. 

MCCULLOUGH’S LAW

It has to be patently obvious that the Assistant Prosecutor of St. Louis County acted in complete contradiction to accepted legal practice. Whereas in a few days he could have set up this highly important matter to be adjudicated by conventional methods, instead he instituted a kangaroo court with his office acting as Judge and defense counsel with no prosecution whatsoever of Officer Wilson. If anything this was a legal lynching and a character assassination of Michael Brown. 

The Ferguson prosecutor’s office presented no indictment to argue for or against, rather they presented all the witnesses and evidence expecting the laypeople to synthesize this into a coherent legal outcome. The irresistible inference to the Grand Jury was that this was a trial to decide whether Officer Wilson was guilty or not beyond a reasonable doubt. The only problem was the police officer was not being prosecuted. Rather McCullough allowed the “target” Wilson to present hours of testimony, another unheard of exigency in a Grand Jury hearing. Wilson was not cross examined. The prosecution brought in a character witness for Officer Wilson. A procedure so bizarre for a Grand Jury that it boggles the mind. His office handed out a document stating Missouri law, that had been long reversed, which gave law officers virtue carte blanche in the use of force. It was finally replaced but with no explanation. Jay H. Ell could go on and on about the abortion and travesty of the legal process that McCullough orchestrated but that would be superflous.

All this took three months while Ferguson cooked under the pressure. Businesses complained that their bottom line was being affected as the uncertainty was keeping people off the streets. As far as the African American citizens of Ferguson were concerned, it was all designed to have a predetermined ending, a conclusion supported by several legal commentators - the non indictment of Officer Wilson.

The chaos and unprofessionalism did not only start at the prosecutors office it was evident from the word go. Michael Brown’s body lay uncovered in the street for hours. There was no chain of custody for the evidence, Wilson just threw his gun into the evidence bag. No measurements were taken of the potential homicide scene. The photograph taken of the officer showing the effects of the altercation was not taken at the police station under the normal protocol but elsewhere by a friend. All this points to an uncaring culture with no respect for the badges they hold, the society they serve and in this instance for the loss of life. 

McCULLOUGH’S HISTORY

Just in case the Governor and the citizenry of Missouri were sucking it out of thin air that the Assistant Prosecutor for St. Louis County was biased there was a common belief that he was inappropriately protective of the police. The perception dated back from the death of his father, a police officer who was a victim of a homicide perpetrated by an African American. The most celebrated example of his bias was chronicled in 2000. There two officers shot two African American suspects. They alleged that the suspects were driving a car towards them. Thirteen detectives testified at the same Grand Jury hearing. Only one detective corroborated the story in addition to the two accused themselves. The independant corroborator McCullough admitted was “totally wrong”. Among other unprofessional acts effected included McCullough reading out the arrest record of the two victims including those that did not lead  to charges. Again it was the same modus operandi, try the victims and let the “targets” uncontested narrative dominate. No indictment followed.

TIMING OF ANNOUNCEMENT

The media made much of the timing of the Grand Jury verdict announcement by McCullough. The Governor maintained he had nothing to do with it. The soliloquy was scheduled for well into the darkness of the winter night. Furthermore it had to be inflammatory to the angry crowd as the Assistant Prosecutor justified the actions of Officer Wilson and denigrated the deceased. If you want to avoid violence the bright light of day improves your chances. Blackness increases the opportunities for provocateurs to slip away and cause havoc, which they did. McCullough had to know that there is a very big section of the American population that are turned off by senseless, purposeless and destructive mayhem. They might judge the whole affair by this outcome. Yet he did what had never been done before, released the verdict after working hours when the Prosecutor’s office was long closed.

The consensus was this decision fitted into his behavior of showing Brown and his supporters in the worst possible light.

AT THE END OF THE DAY

* Everyone had called for peaceful protests - Brown’s parents, the organizers of the protests to the POTUS, (yes this whole incident was a very big deal), and to a large extent the outpourings of anger in 200 American cities were trouble free. 

• The Brown family were as constructive as possible calling for police to wear video cameras, a cry which has gained much traction. In Illinois, for example, one of the Police hierarchy saw merit in the suggestion as it would also record, to quote him, what the law officers face on a day to day basis and their professionalism. There is very little doubt that both the questioned and the questioners might behave differently if they knew this was all being videotaped. It is interesting to note that in the shooting, in Cleveland Ohio, by a white police officer of a twelve year old African American child who was threatening everyone with what turned out to be an airgun, was videotaped. While the family, understandably are still questioning the necessity of killing their child, there is no doubt that another major confrontation has been avoided by the release of the recording. The video obviously reassured most as there were no countrywide protests arising out of the tragic incident. If the Brown family’s wish that their son did not die in vain is translated into all potentially violent police interactions being videotaped this sad tragedy will have resulted in a major positive outcome for all concerned.

* Whatever one’s beliefs are, however much can identify with the difficult and dangerous vocation that is the lot of the police, Jay H. Ell cannot but reflect that the Brown matter should have been thrashed out in open court. Officer Wilson may have a clear conscience and even if his story is the correct one it begs the question of whether at least he was reckless in firing several shots at someone, who was a 130 feet away and whom he knew to be unarmed, because he claimed that he feared for his life. The obvious follow up  question would be, "If you believed that why did you not drive off".  In a similar but not parallel case in South Africa the Judge accepted that the Defendant Oscar Pistorius was terrified of an intruder but sentenced him to a prison term because it was reckless to fire through a closed door without ascertaining who was there. One has to respect the value of life. Pistorius too could have just walked away. 

• Had the prosecution been more thorough Officer Wilson might have had to face even graver charges. His injuries appeared minor and who knows how his story would have stood muster under a rigorous cross examination. It appears a bit of a stretch, on its face, to maintain that an armed seasoned experienced officer felt that he was no match for an unarmed teenager, “Hulk Hogan”, whom he had already wounded. Brown’s background has been exhaustively researched and nowhere was there a hint of a ferocious, aggressive and unbeatable fighter. Wilson's claim that Brown all of a sudden might have had a gun which he had failed to use to date, having already been shot twice would not withstand the cold light of day. Who knows how the defendant’s evidence might have sounded with a prosecutor who was actually trying to do his job? The key witness who was with Brown all the while, Dorian Johnson, tells a decidedly different story to that of Officer Wilson. If the court accepted Johnson’s version it would have put the law man in threat of a second degree murder conviction. It is instructive to read Johnson’s testimony online, with all its pathos. In fact to any reasonable person it would make sense that Johnson’s version was more credible than Wilson’s. For example, Johnson states that Wilson swore at them telling them to get the f.. off the road. Wilson infers that he politely asked the two of them to do so. Which beginning is more likely to have sparked of the mayhem that followed?  Brown of course is dead so we cannot hear his side of the story….