Friday, November 28, 2014

Prosecutorial misconduct in Ferguson ... some reasons for hope

Last update: Friday 11/28/14 @ 12:18 pm
We have all heard the old saying that a competent prosecutor could get a grand jury to indict a ham sandwich. But we also know that prosecutors don't go on to win all of their cases. Why not? What's the difference between a grand jury and a trial jury?

A. Grand juries as tilted playing fields
Trial juries participate in judicial procedures managed by judges who enforce rules of evidence and other procedures designed to ensure that both sides get a fair hearing. By contrast, grand juries participate in procedures that are managed by the prosecutors themselves. No judges are present. So prosecutors are free to introduce whatever evidence they deem fit and to interrogate witnesses in whatever manner they choose. In other words, prosecutors get what they want from grand juries because they are free to tilt the procedural playing fields to their advantage. They can do things with grand juries that competent judges would rule out of order in a trial.

So the question becomes: How far will prosecutors deviate from trial procedures in order to win indictments from grand juries? Their overwhelming record of victory suggests an obvious answer: They will go as far as they think they have to go in order to win an indictment -- if they really want an indictment. And conversely, they will go as far as they think they have to go to convince a grand jury NOT to vote for a indictment if, as in the Ferguson case, the prosecutor really doesn't want an indictment, i.e., if arraigning the grand jury is merely a charade designed to abruptly halt a series of politically troublesome trials and appeals before they began.

B. How far did prosecutors go in Ferguson?
According to reports from MSNBC and Salon magazine, the prosecutors went pretty far.  To be specific, they went so far as to deliberately misinform the grand jury that a police officer has the right to shoot a suspect if the suspect tries to run away. And they acted more like Officer Wilson's defense attorneys than his prosecutors. Please review the following sources:
C. Does it really matter?
Frankly, I'm surprised that the prosecutors felt they had to go so far out on such unethical limbs. Nine jurors had to vote in favor of an indictment; therefore only four jurors had to oppose in order to defeat the indictment. There were six white men, three white women, two black women, and only one black man on the grand jury. If Ferguson were only half as racist as it has been portrayed in the media, it should have been a slam dunk for the prosecutors to convince four of the nine white jurors to oppose the indictment. 
  • Surely the District Attorney and his assistants knew that the reporters would notice that they lied when they told the jurors that Officer Wilson had the legal right to shoot Michael Brown just because the young man tried to run away. And surely the prosecutors knew that the reporters would notice that the prosecutors never cross-examined Officer Wilson.
  • Of course they did. But they didn't care. They went as far as they thought they had to go in order to win. And their victory will stand because there's no appealing the grand jury's decision not to indict Officer Wilson. 
Some people might be shocked by the prosecutors' unethical behavior, but I'm not. I'm pleased. Why? Because cops get away with killing young black males because of systemic racism, i.e., systemic bias against black males. It's difficult to mobilize against systemic racism because the decision makers who populate key positions in racist systems often seem to be so "reasonable."  Indeed, many are unaware of the extent of the racial bias of the systems they inhabit. So when prosecutors act like cartoon "Bad Guys" under the glaring klieg lights of the national media, their misbehavior personifies the evils of the system, thereby making it easier for more people to understand ... and actively oppose.

I was also pleased by their apparent desperation. As noted above, if Ferguson were half as racist as portrayed in the media, getting no indictment should have been a slam dunk. But evidently the prosecutors couldn't identify four jurors who could be easily persuaded to ignore the fact that the unarmed black teenager first caught Officer Wilson's attention -- not because he was in the act of committing a rape or an armed robbery -- but because he was merely jaywalking in the middle of the street with a friend, instead of walking on the sidewalk. So maybe, just maybe, there may be hope for Ferguson in the not-too-distant future.

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