Friday, November 28, 2014

Ferguson Says Forget Due Process--A Secret Jury Trial is More "Cop-Aesthetic."

Mike Brown, "the demon."
The grand jury proceeding in Ferguson Missouri is a metaphor for the country's continued biased [mis]application of the rule of law where both Black American victims and/or perpetrators are concerned: the hell with due process--the facts are more important.

Nowadays, it is the facts that prevail--no matter the procedure used to draw them out.

The Supreme Court has long since destroyed the 4th Amendment, the erstwhile rule to prohibit unlawful search and seizure.  So the principle of protecting citizens from an out-of-control police is gone. Now it's a "rules-be-damned-I-know-you-did-something-wrong," legal system. It might appear that I want criminal perpetrators to get away with their conduct, but that could not be further from the truth. 

So, lest you think me a hater of government and the police, my work history is my disclaimer: I worked for law enforcement for 11 years, first as a federal immigration attorney, then as an ivory tower international criminal law attorney. I was never in the court room. I worked with U.S. prosecutors and foreign governments to bring fugitives to their nations' courtrooms for trial. I helped the Secret Service and the FBI bring criminals "to justice," in the United States.

Furthermore, I detest criminals in general. For instance:

I don't like drug dealers.

I don't like white collar fraudsters.

Let me also declare that I really, really, really, don't like pedophiles (a subplot of my upcoming novel) and in a parallel universe I wish we could burn them alive; but on this earth in the here and now, I am a pacifist and don't believe in the death penalty.

We learned about grand jury proceedings in law school, and I remember my shock at how flimsy the process appeared to be.  Basically, it's just a way to make sure the police aren't too crazy when they bring criminal cases to their superiors. They put a panel together to look at evidence and confirm that the prosecutor has or does not have probable cause--in essence, a legitimate reason to move forward with a case.

They decide whether there is enough evidence to bring forward a case.

Let me say it another way to let this sink in:  the grand jury is supposed to look at the evidence and answer the following question put to them by the prosecutor, "Do you think this police officer's or detective's case is strong enough for me, as an attorney, to go forward, to bring charges against this defendant--FOR A JURY TO DECIDE his guilt or innocence?

Let me break it down even more:   Let's say you're making a cake. What are the ingredients to determine whether one can make a cake: flour, eggs, milk, baking powder/soda, sugar...  is that enough to make a cake? Ta-da! That's probable cause.

Now, nobody knows if the cake is truly going to taste good, but... it's the ingredients that count. Is that enough to make a cake? Again, it is the trial jury who will decide if it tastes any good.

Grand jury proceedings are usually pro forma:  the prosecutor presents his case, brought by the police (or detective) who created the case, and the grand jury says, yes or no, we think you have enough evidence to prosecute - to take the case to a full criminal proceeding.  To indict is to charge.  Not try the case.  That's what a full criminal proceeding is about.  A criminal proceeding is when the lawyers sit on opposite sides of the courtroom and they get to make their client's case. In the case of the police, they are supposed to make the case for the PEOPLE of the jurisdiction in which they work, in this case, Ferguson, Missouri, a city that happens to have a Black majority. In Missouri, a grand jury of 9 must agree to put forward an indictment -- NOT TO CONVICT. TO INDICT.  We won't address the implications of the serendipitous (for Officer Wilson) make up of the jury right now.... there were 9 Whites and 3 Blacks. Do the math. 

In Ferguson, however, something different happened than happens in most grand juries:  the prosecutor was going to prosecute one of his friends, a fellow member of law enforcement. So, instead of deciding whether there was enough evidence to go forward, the grand jury proceeding turned into an investigation into why Michael Brown deserved to die. The prosecutor explained why it was perfectly all right to kill the teenager:

1. Mike Brown stole some cigars from a liquor store.
2. Mike Brown was big like Hulk Hogan.
3. Mike Brown looked like a demon.

Those are reasons for disliking someone.  Not killing him.

There's only one person who, conceivably, may have had a right to kill Mike Brown: the liquor store owner, to protect his property. Yes, the owner backed down, too, on the video, when Mike turned to him, using his girth to prevent him from doing anything to stop Brown from leaving the store with his cigarette contraband.  But the police officer, who might have had a right to shoot, had no right to kill.  Period. He had a right to maim, a right to impede; he could have shot him in the shoulders, in the knee caps, in the pelvis, or even in the foot. But he had no right to kill--considering that his menacing assailant was unarmed.


But, in the case of the Ferguson prosecutor, the standard changed because his "brother," a police  officer, Darren Wilson, was the one being scrutinized like a criminal.  Where the mythical police officer that should have arrested Darren Wilson would have said to the prosecutor, "I think we need to arrest this police officer because he's going around shooting people that he fears are a physical threat to him."

That didn't happen.  It was okay to shoot Mike Brown, because in the eyes of law enforcement, Mike Brown represents everything wrong with Black American youth: they wear their pants down, walk around like they own the joint, and are petty thieves. Of course, Wall Street got bailed out $700 billion dollars for bilking Americans out of their hard-earned money, and what happens to them?
They get a raise.

Had I met Mike Brown, I might have thought he was a jerk for taking those cigarillos, but I would never wish him death.  But a lot of hateful Americans feel otherwise: he deserved to die and got his comeuppance because he was a "bad person. " Imagine how many people would "deserve to die" for being bad people:  at the risk of being investigated for my opinions, let's just say that many politicians would not be holding office today if being a good person were the standard for whether they continued to live on this earth.

The United States legal system is derived from the British, who devised a system whereby the King could keep people "in check" in their communities by granting grand juries the right to assemble and decide to file charges against criminal wrong-doers far from the King's or Queen's watchful eyes. These people supported the Crown, obviously. Nothing has changed in the purpose of the grand jury here, in the U.S., except that we don't have Kings and Queens. We have authority in the form of the local police, who are supposed to be the stewards of peace and tranquility in our communities.  The grand jury generally supports the police.

Police who prosecute.

The grand jury is supposed to rubber stamp the police's abilities to go after a criminal suspect, and arm them with the power to arrest and bring them to justice.  The British system acknowledged this fact. In an article entitled, "Abolition of the Grand Jury in England," Chief Clerk of the Bow Street Magistrates, Albert Lieck, explained:
Originally the grand jury, in criminal procedure, were the informants.  They told the King's judges what crimes had been committed in their venue, or neighborhood as the better Saxon word has it. In exceptional times and places their refusal to find true bill defeated tyrannous prosecution, but if history instead of vague sentiment be our guide we shall realize that such happenings were exceptional, and that to talk of the loss of a great safeguard of personal liberty is to talk nonsense.
Translation in American English: grand jury prosecutions were almost, without a fault, in favor of the police, allowing a case to go to trial, and the exception was very rare. 

Now, take away Darren Wilson's uniform, and Mike Brown's menace to car-driving society (he drew Officer Wilson's attention because he had the audacity to be walking down the middle of the street).

That didn't happen here. A man who should have been given a public audience to publicly make his case for why he killed a Black teenager--was spared the embarrassment of being made accountable, to look jurors in the eye, instead of a sympathetic grand jury. 

The British abolished the grand jury in 1933.  Always late to the party, the U.S., might need to do the same. Why should we  countenance a system of secrecy, of laissez-faire evience-gathering, which ultimately impacts upon the liberties of Black accused and Black victims who are allowed to be killed with police impunity, by officers like Darren Wilson, who said he would kill Mike Brown again if he had to. 

RIP Mike Brown.  You may have stolen a pack of cigarillos, but your life was stolen from you, in a heinous way. And the world knows now that our democracy has grave flaws--with headstones for Black people.  I'm not sure when things will ever change.  Will it be once there are no more Black people to arrest, because the grand jury will put us all in jail, or will it be once we are all killed by grand juries like the one that justified Mike Brown's murder?

This is why I will always support the existence of the federal government.  The Department of Justice must come forward and address this horrible wrong.

This is not a Happy Thanksgiving, America.

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