So, the shooting of Michael Brown in Ferguson, Mo., was justified. That is essentially what the grand jury said yesterday when it refused to hand down an indictment against the shooter, Police Officer Darren Wilson. I know that, technically, the grand jury didn’t say that. It found that there was not enough evidence to indict, but that is not the message being sent. And that is why there is a lot of anger in Ferguson and throughout the country.
I don’t know what happened that night. I wasn’t there and I was not on the grand jury. Few of us were, so we can’t say for certain that Wilson did not fear for his life — a key component of his defense. We can’t know if he was afraid — and, even if we assume he was, we can’t know on what he based that fear, whether it was tied to stereotypes of young black males or to Brown’s size or a real threat.
That distinction is important, because it relates back to the question of race in America. Police, as the courts have ruled, have a right to use deadly force if they fear for their lives or the lives of others. But what triggers the fear? When race is involved, as we saw in the Trayvon Martin tragedy, it literally can color judgment, lead us to assumptions that are far from accurate.
Brown was a large black teen, a fact that carries with it certain assumptions and biases to which even the best of us fall prey. So, it is not out of the realm of possibility that race played a role in Wilson’s thinking, in the way he read the situation, in his reaction. Brown’s physical presence may have been enough of a threat for Wilson to create fear in the officer’s mind, may have been enough for him to believe he needed to respond with fatal force.
If this was true and the fear was enough to justify the use of deadly force, then this is more than a tragedy. It was a travesty. It is part of a long history in which black bodies come to stand in for danger and that black teens are seen as predators.
That’s why I am having trouble not looking at this through the lens of race. We are supposed to assume that the justice system works, that the grand jury did its job and that the evidence led it to make a fair and well-thought-out decision. We are supposed to assume that the prosecutor in Missouri, St. Louis County Prosecutor Bob McCullough, was just trying to be transparent and fair to all sides.
But as Dana Milbank, of all people, points out, “the joke of a grand-jury proceeding run under the auspices of McCulloch, the St. Louis County prosecutor,” seemed to guarantee a pre-ordained result: “his decision not to recommend a specific charge to the grand jury essentially guaranteed there would be no indictment.”
McCulloch essentially acknowledged that his team was serving as Wilson’s defense lawyers, noting that prosecutors “challenged” and “confronted” witnesses by pointing out previous statements and evidence that discredited their accounts.
This, as so many commentators have pointed out, put McCullough in the dual position of prosecutor and defense attorney — an untenable position. In August, Vox quoted Alex Little, a former federal prosecutor, as questioning the approach taken by McCullough:
(T)here is no obligation for prosecutors to present possible defenses to the grand jury. The only question the grand jury must answer is whether there is probable cause to believe a crime has occurred. That’s a very low standard, and it’s almost always met when the District Attorney seeks charges.
If he takes that approach, then he’s already decided to abdicate his role in the process as an advocate for justice.
So when a District Attorney says, in effect, ‘we’ll present the evidence and let the grand jury decide,”‘that’s malarkey. If he takes that approach, then he’s already decided to abdicate his role in the process as an advocate for justice. At that point, there’s no longer a prosecutor in the room guiding the grand jurors, and — more importantly — no state official acting on behalf of the victim, Michael Brown.
That, said Vox last night, “could have made an indictment less likely.”
So why go to the grand jury? Some are saying McCullough did not have a choice, that it was politically problematic for him not to seek an indictment. But, as Milbank says, “it appeared he wasn’t even trying to get an indictment” and that “he had a long record of protecting police in such cases.”
So, when the no-bill came down last night, Milbank said, “he prefaced it by blaming the press and social media for whipping up emotions in the case with inaccurate information.” More importantly,
He hid behind the grand jurors, as if he hadn’t orchestrated their decision with the finesse of conductor Christoph Eschenbach: “Anyone suggesting that somehow it’s just not a full and fair process is just unfair to these people” who “gave up their lives” to deliberate.
The point is that the grand jury is not a jury. It is, as I wrote on a friend’s Facebook wall earlier today,
an arm of the prosecution.
Normally, the prosecutor presents HIS case to the grand jury. He acts as an advocate for the victims (in theory) and the state, which is supposed to speak for the victims, and uses the GJ as part of the prosecutorial arm (it is not the same thing as a jury).
There is no right to a defense during a grand jury proceeding. That comes during a trial.
Complicating matters further, the interests of the state and the defense were intertwined, leaving the victim out in the cold with no one to guarantee him, Michael Brown, a fair hearing.
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None of this is meant to lay a blanket of criticism across all police officers. I have the utmost respect for them and the job they do. And, as I told my class tonight, 95 percent — and probably more — are conscientious and committed to protecting the communities they serve. But they also are human and they are subject to the same foibles — the same prejudices, the same fears, the same momentary lapses — as the rest of us. They are trained to be better, and in most cases they are. But they are human and when they fire a gun and a life is taken, the public has a right to expect a fair and open investigation. As of now, it is unclear that Bob McCullough provided that.
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This collection of essays, by the way, are a necessary read. They offer a variety of viewpoints on the question of police culpability.
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Some other thoughts (I posted a version of this to another friend’s Facebook thread, but wanted to share it here):
I was thinking this morning about how we construct narratives. TV news’ need for striking and dramatic images tends to draw the eye away from more peaceful protests to violence because the violence is visual. Then the media uses the imagery to help reinforce its preconceived notion that the violence was inevitable so that it can stop looking at the underlying causes of the rage that resulted in the violence.
What helps drive this is the majority’s almost blind trust in the police — something the minority community lost a long time ago. The default position for most is to assume that police must take a military position, that their job entails cracking down on unruly and dangerous masses — especially the darker ones — and that the police must act like the military to do so. It is the norm, as is the TV-cop-show-inspired militarization of the relationship between police and the public. In many communities (not all — there are thousands of good cops out there), we have moved from “protect and serve” to an occupational mindset. This attitude frames the reaction to photos of police in military gear, which we no longer question. (See my essay on this in Dinosaur, which is only available in full form if you buy the magazine.)
I also think the lessons of the civil rights movement about the impact of violence on the broader public’s acceptance of protest have been lost — because we have (through public policy and not-so-benign neglect) created a series of minority bantustans throughout the country, which allows anger to fester, where jobs in the legitimate economy are scarce, where the money that can be made is tied to drugs and other illicit activities; and because the society as a whole has become more accepting of violence as a tool of redress, whether real, as in our shoot-first foreign policy, or metaphorical, as in the way we have endorsed name calling and personal attack and innuendo as legitimate modes of argument.
In the end, we should be discussing whether the use of force by police deserves more scrutiny on a regular basis (and not just when there is a high-profile shooting); whether we need to re-evaluate the role of police and whether this militarization is necessary or wise; how we can break up these bantustans and provide broader housing and economic opportunities for all (it is going to take more than expanding the pie); and how we can devalue violence as a mode of redress. Instead, we are going to continue to discuss the torching of a convenience store and we will use it to ignore the real issues in play.
As a postscript, I want to add that
the focus on arson is similar to the repeated playing of the videotape that purportedly shows Brown robbing the convenience store. It shifts the blame for underlying issues of race and power to one in which we can dismiss Brown — or brown people — as unworthy of our respect or support.
Send me an e-mail.
Hank Kalet 