Thursday, November 27, 2014

L.A. Riots 2.0: Ferguson, Missouri


On November 24, 2014, I remember sitting in front of my television waiting on a decision from the grand jury in the Michael Brown case.  When St. Louis County Prosecuting Attorney Robert McCulloch began his press conference, I had a feeling that the grand jury would not indict Darren Wilson.  When, after seemingly two hours of discussion, he finally announced that the jury had reached a decision not to indict Wilson, I did not have an immediate reaction.  I was not surprised, or mad, or sad, or disappointed, or frustrated.  I was completely void of emotion because I had no expectations—good or bad.  I have developed this mechanism of coping based on many years of being disappointed in our judicial system.  I remember watching the Rodney King assault on television years ago and thinking that justice would surely be served.  In my naïve mind, the officers would be prosecuted and jailed because their actions were actually recorded.  How could they not pay for their behavior?  I was wrong.  In 2009, I remember hearing about how 
Oscar Grant, an unarmed black male, was murdered by a police officer.  The officer was convicted of involuntary manslaughter, but the evidence presented seemed to suggest that a more serious conviction should have been upheld.  In 2012, I remember watching the Trayvon Martin trial and believing that his killer would be brought to justice.  You can probably guess what happened, right?  His murderer was acquitted and became a semi-celebrity.  These are but a few of the reasons I have lost faith in the criminal justice system.  So, with Michael Brown, I just listened to the announcement and then started reading blogs, websites, statuses, and anything I could regarding the decision.  Because I do not practice criminal law, I was mostly interested in learning about grand jury proceedings from experts on the subject matter, i.e. prosecutors, defense attorneys, judges and other criminal law experts.

A grand jury is a group of people who are selected and sworn by a court.  In this case, the grand jury consisted of twelve jurors—nine Caucasian Americans and three African Americans. Grand juries differ from trial juries in that they only determine whether a person should be indicted, or charged with a crime.  The burden of proof in this proceeding is probable cause, which is a relatively low legal burden. A grand jury proceeding (like the proceeding that recently concluded in the Michael Brown case) usually involves members of the grand jury listening to evidence presented by the prosecuting attorney(s).  Usually, the accused’s attorney is not present.  I talked to some of my colleagues who are either criminal defense attorneys or prosecuting attorneys, and was informed that prosecuting attorneys can usually obtain an indictment in most cases. Remember: an indictment just means that a person can be charged with a crime; the guilt and innocence phase comes much later in the process. 

Because the jury did not return an indictment, despite there being plenty of evidence to suggest that Wilson broke the law, many folks believe that McCulloch did not do his job.  This idea is called prosecutorial abuse and is a real phenomenon, unfortunately.  If you had the chance to watch McCulloch’s press conference following the grand jury decision, it was difficult to determine his role.  Was he the prosecutor or Wilson’s defense attorney?  During the grand jury proceeding, McCulloch presented all evidence—both for and against charging Wilson.  This was not his job and it makes people question his motives.  Was he trying to present evidence in a way that would encourage the grand jury to not indict Wilson?  If you read the transcript from the grand jury hearing and listened to the press conference following the decision, you could easily come to this conclusion.  This is troubling on a number of levels.

I am not an expert on police protocol, but I believe Wilson could have handled the situation with Michael Brown in a much better manner.  Had he dialed down his aggression towards an unarmed man, maybe Michael Brown could be enjoying his family today.  Wilson testified that Michael Brown attempted to grab his weapon during an exchange while he was still in his police car.  He also indicated that Michael Brown was bigger than him and essentially that he was afraid for his life.  At some point common sense should kick in.  If he felt so intimidated and overmatched, why didn’t he wait for reinforcements before trying to arrest Brown?  Also, he admitted that he discharged his weapon twelve times—yes, I said twelve times.  That seems like use of excessive force especially considering that Brown was unarmed.  Wilson testified that he was not carrying a Taser gun that day because it was uncomfortable to do so.  Additionally, he testified that he did not use mace on Brown because it could have backfired on him.  He testified that his baton was not available for him to use, so he resorted to deadly force.  That sounds like excessive force to me, which is why the grand jury not indicting him is puzzling. 

Grand jury proceedings are designed to be one-sided.  Typically, only the prosecuting lawyer, judge, members of the grand jury and witnesses are present during the proceedings.  When the prosecuting attorney calls witnesses to the stand to testify, the witnesses are provided an opportunity to testify without being cross-examined by the opposing attorney.  Cross-examination is a process whereby attorneys are allowed to interrogate a witness called by his or her opponent.  In many grand jury proceedings, the accused does not testify.  But, in this case, Wilson testified for four hours about the circumstances leading to the untimely death of Brown.  Imagine how easy it was for Wilson to describe the circumstances leading to Brown’s death in his own terms.  Imagine how he would be able to couch the incident in terms of how he was afraid for his life and how he followed proper protocol.  Also, understand that nobody could interrogate him.

As a civil lawyer, I cannot begin to explain how many times I have interviewed potential witnesses at my office (when the opposing attorney could not interrogate them) and witnessed their calm demeanor and confident tone of voice.  After the meeting, you (sometimes) believe the witness is ready to proceed. Then, when the witness appears at a deposition (another court proceeding) where the opposing attorney is able to cross-examine him, the witness struggles and often sings a different tune.  I have seen people who are telling the truth be made to look less than credible under the cross examination of a skilled advocate.  I say all that to say that Wilson was on easy street at the grand jury proceeding.  Under normal circumstances, this one-sided proceeding would not benefit the accused because the prosecutor would be actively pursuing an indictment—you know, doing his job.  However, if the prosecutor is not doing his job, the proceeding can actually benefit the accused.  In this case, I believe that McCulloch’s behavior actually benefitted Wilson.  If he were truly innocent of any wrongdoing, a trial jury would have found that he was innocent.  Because of McCulloch’s behavior, we will never know.

What will happen next?  A number of things could happen, but it is unclear at the moment exactly what will happen next.  The federal government is investigating Wilson to see if he violated federal civil rights laws.  Upon the conclusion of this investigation, the federal government could charge Wilson with a federal crime.  However, it is unlikely that this will happen because the burden of proof in a federal case is higher than that needed to proceed with a case against Wilson on the state level.  Brown’s family could sue Wilson in a wrongful death lawsuit.  This type of lawsuit could potentially allow the Brown’s a chance to recover monetary damages from the Ferguson Police Department and/or Wilson individually.  Despite this being an option, police officers are afforded legal defenses that could make this effort nearly impossible to complete.   I am certain people will continue protesting and complaining about how the system is unfair.  People will talk about how broad changes to the system are needed—people will be angry, but ultimately nothing is likely to change in the near future.  The kind of change needed to undue or at least mitigate the damage of years and years of institutional racism, prosecutorial abuse and excessive force is unfathomable.

As President Barack Obama so eloquently said, “we need to recognize that the situation in Ferguson speaks to broader challenges that we still face as a nation.”

Only time will tell whether we make the changes that are clearly necessary, or whether we will forget about Michael Brown as soon as his name is no longer uttered by the media.


Peace 

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