Commentary Magazine


Topic: Michael Brown

The Grand Jury System Is Broken

The announcement of the grand jury’s decision in the Ferguson case could hardly have been worse handled. The prosecutor waited until well after nightfall to make the announcement and the governor, having mobilized the national guard to protect persons and property, kept them in their barracks while the rioters ran wild.

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The announcement of the grand jury’s decision in the Ferguson case could hardly have been worse handled. The prosecutor waited until well after nightfall to make the announcement and the governor, having mobilized the national guard to protect persons and property, kept them in their barracks while the rioters ran wild.

But many on the left are blaming the way the prosecuting attorney, Robert McCulloch, presented the case to the grand jury. Dana Milbank in the Washington Post wrote that

What causes the outrage, and the despair, is the joke of a grand-jury proceeding run under the auspices of McCulloch, the St. Louis County prosecutor. In September, I wrote that it appeared he wasn’t even trying to get an indictment; he had a long record of protecting police in such cases, and his decision not to recommend a specific charge to the grand jury essentially guaranteed there would be no indictment.

A New York Times editorial argued that

Instead of conducting an investigation and then presenting the case and a recommendation of charges to the grand jury, his office shifted its job to the grand jury. It made no recommendation on whether to indict the officer, Darren Wilson, but left it to the jurors to wade through masses of evidence to determine whether there was probable cause to file charges against Officer Wilson for Mr. Brown’s killing.

Former Chief Judge Sol Wachtler of New York once famously said that a district attorney could get a grand jury to “indict a ham sandwich” if that’s what he wanted. Milbank and the Times are essentially arguing that McCulloch should have done exactly that: abuse the grand jury system in order to get an indictment that most people who have looked at the massive amount of evidence he released say would not have resulted in a conviction.

But if grand juries almost always do what the district attorney wants, why do we need grand juries at all? Well, one answer to that question is the 5th Amendment to the Constitution which says that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, …” And as Andrew McCarthy notes in National Review Online the Founding Fathers regarded the grand jury as a core protection:

It stands as the buffer between the government prosecutor and the citizen-suspect; it safeguards Americans, who are presumed innocent, from being subjected to the anxiety, infamy and expense of a trial unless there is probable cause to believe they have committed a serious offense.

But as Judge Wachtler implied, it no longer serves that function and has become deeply and institutionally corrupt. It has become a means for prosecuting attorneys to further their political ambitions. They are almost always elected officials in this country and many successful politicians have begun their careers that way. Thomas E. Dewey and Rudi Giuliani are two examples of politicians who used their position as prosecuting attorneys to quite deliberately generate publicity for themselves and move on to higher office. It was Dewey who invented the “perp walk” with reporters invited to be in attendance when a person was arrested.

Grand juries no longer exist in any other common law country. In England and Wales they were abandoned more than eighty years ago. Nor are there political district attorneys. Instead police take the evidence of a crime to the Crown Prosecution Service, staffed by bureaucrats not politicians, and the CPS decides if there is strong enough evidence and that justice would be served by holding a trial before a petit jury.

The grand jury system is broken and it either needs to be thoroughly reformed in order to provide the needed protection from an overreaching prosecuting attorney or the 5th Amendment needs to be itself amended.

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Ham Sandwich Indictments and the Riot

The nation is still reeling this morning from last night’s televised riot in the streets of Ferguson, Missouri in the aftermath of the decision of a St. Louis County grand jury not to indict police officer Darren Wilson for the death of black teenager Michael Brown. Without offering any opinion either criticizing the grand jury’s decision or supporting it, I do however wonder about one particular trope that was often heard last night on CNN and MSNBC. Namely, that the prosecutor that had presented the evidence on the case had erred by not doing so in a manner that would have dictated an indictment. The consensus on those networks of their panels of “legal experts” was that it was the duty of the prosecutor to play out the “ham sandwich” paradigm of grand jury panels. My question today is to ask why anyone would think such behavior would be a good thing under any circumstance.

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The nation is still reeling this morning from last night’s televised riot in the streets of Ferguson, Missouri in the aftermath of the decision of a St. Louis County grand jury not to indict police officer Darren Wilson for the death of black teenager Michael Brown. Without offering any opinion either criticizing the grand jury’s decision or supporting it, I do however wonder about one particular trope that was often heard last night on CNN and MSNBC. Namely, that the prosecutor that had presented the evidence on the case had erred by not doing so in a manner that would have dictated an indictment. The consensus on those networks of their panels of “legal experts” was that it was the duty of the prosecutor to play out the “ham sandwich” paradigm of grand jury panels. My question today is to ask why anyone would think such behavior would be a good thing under any circumstance.

It was clear from the start that any vote other than one for a murder indictment would be treated as an act of racist indifference that many African-Americans would never accept. The tragedy that has unfolded in Ferguson is one to which there are no easy answers. Clearly, African Americans approach the issue of police shootings of young black males from the perspective that such incidents are the product of racism and it would be insensitive as well as pointless to claim that they are wrong to see it from this point of view even if the facts of this particular case clearly led the grand jury to treat the shooting as something that did not warrant a murder trial.

Yet I am intrigued by the attacks on St. Louis County Prosecutor Robert McCulloch for his decision not to attempt to manipulate the grand jury in the style that is usual for district attorneys and which goes under the rubric of “ham sandwich” indictments. It is a cliché, but nonetheless true, that any good district attorney can get a grand jury to indict a ham sandwich. The reason for this is that they control the evidence presented to the grand jury and the witnesses and potential defendants have no say in the forum as to what is heard other than their own testimony.

The presumption of McCulloch’s critics is that by choosing not to focus the grand jury only on those witnesses and evidence that would have inclined them to indict and instead showing them everything he had, including exculpatory material that led them to think Officer Wilson’s behavior did not amount to a crime, he had “failed.” In essence these legal talking heads accused him of tanking the case by “confusing” the grand jury with two sides of the argument rather than just guiding them toward an indictment.

To be fair, those who spoke of McCulloch’s behavior as being unusual are not entirely wrong. Prosecutors on every level of our judicial system generally behave in this manner. Those in the cross-hairs of district attorneys may eventually have their day in court when their case comes to trial, when their evidence is presented and which includes the obligation of juries to not convict anyone if reasonable doubt can be found about their guilt. But grand juries are not places where justice of that sort is always done. Ham sandwich indictments happen every day, and it can be argued that procuring one in this case would have spared Ferguson a riot from angry, violent people who wanted Wilson punished whether or not he is actually guilty of crime.

McCulloch may have acted in this manner because he is, as his local critics claim, predisposed to believe the police rather than the African-American community. Even if that is unfair it seems clear that he doubted that Wilson should be charged or at least felt, probably rightly, that there was little chance of gaining a conviction.

But whatever we may think of McCulloch or the specifics of this case, there is something wrong with a mindset that believes that a prosecutor isn’t doing his job if he is playing fair.

There is an old expression in sports that says, “if you ain’t cheating, you ain’t trying.” That presupposes a belief that the job of all competitors is to seek every possible advantage, legal or not. And it is one that most district attorneys general take as seriously as any athlete who thinks winning at all costs is the only way to go.

Yet instead of doubling down on this assumption, perhaps it might not be a bad thing if more prosecutors acted as McCulloch did and presented all of the facts to grand juries rather than only those that will get them a desired indictment. Perhaps we might have a more fair system that all citizens—including minorities that have historic grievances and concerns about getting short shrift from the system that can’t be ignored—might benefit from if there were fewer instead of more ham sandwich indictments. Surely our legal system is troubled more by out-of-control prosecutors who run roughshod over the rights of the accused — and sometimes use ham sandwich indictments to blackmail defendants who might not be able to afford trial costs to accept a plea bargain —than by those who are scrupulous about not tipping the scales of justice.

If the worst thing we can say about the St. Louis County prosecutor’s office is that they behaved in the latter fashion, then maybe McCulloch is not quite the villain he had been made out to be. Moreover, those who, whether intentionally or not, egged on the rioters by claiming that McCulloch had performed an act of professional malfeasance should think seriously about the implications of such an unreasonable position.

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Rudy Giuliani vs. the Ignorant Agitators

There was some controversy over on Meet the Press this weekend when Rudy Giuliani got into a bit of a heated exchange on race, Ferguson, and public safety with Michael Eric Dyson, MSNBC’s Vice President of Accusing Everything That Moves of Being Racist. Dyson claimed, in a comment that should discredit him to anyone still taking him seriously, that Giuliani’s comments about black-on-black crime stemmed from “the defensive mechanism of white supremacy.” This morning on Fox, Giuliani defended his comments: “I probably saved more black lives as mayor of New York City than any mayor in the history of the city, with the possible exception of Mike Bloomberg, who was there for 12 years.” Yet while the argument centered on police action, to understand Giuliani’s contribution to this issue–which is even greater than he says himself–it’s important to take a step back from the policing issue.

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There was some controversy over on Meet the Press this weekend when Rudy Giuliani got into a bit of a heated exchange on race, Ferguson, and public safety with Michael Eric Dyson, MSNBC’s Vice President of Accusing Everything That Moves of Being Racist. Dyson claimed, in a comment that should discredit him to anyone still taking him seriously, that Giuliani’s comments about black-on-black crime stemmed from “the defensive mechanism of white supremacy.” This morning on Fox, Giuliani defended his comments: “I probably saved more black lives as mayor of New York City than any mayor in the history of the city, with the possible exception of Mike Bloomberg, who was there for 12 years.” Yet while the argument centered on police action, to understand Giuliani’s contribution to this issue–which is even greater than he says himself–it’s important to take a step back from the policing issue.

While Giuliani was not anyone’s idea of a traditional social conservative, there were aspects of his public policy of which the ends and the means were more conservative than he’s often given credit for. That’s why it’s worth putting the policing issue aside for the moment and concentrating on something else: his approach to inner city poverty and the role of fatherhood.

In a 2007 piece in City Journal appropriately titled “Yes, Rudy Giuliani Is a Conservative” (a premise many conservatives take issue with but one that is followed by a perfectly coherent case in the article), Steven Malanga goes over Giuliani’s highly successful welfare reform. And after discussing welfare, Malanga offers the following paragraph, which is rarely discussed but seems crucial to understanding Giuliani as a politician:

As part of Giuliani’s quintessentially conservative belief that dysfunctional behavior, not our economic system, lay at the heart of intergenerational poverty, he also spoke out against illegitimacy and the rise of fatherless families. A child born out of wedlock, he observed in one speech, was three times more likely to wind up on welfare than a child from a two-parent family. “Seventy percent of long-term prisoners and 75 percent of adolescents charged with murder grew up without fathers,” Giuliani told the city. He insisted that the city and the nation had to reestablish the “responsibility that accompanies bringing a child into the world,” and to that end he required deadbeat fathers either to find a private-sector job or to work in the city’s workfare program as a way of contributing to their child’s upbringing. But he added that changing society’s attitude toward marriage was more important than anything government could do: “[I]f you wanted a social program that would really save these kids, . . . I guess the social program would be called fatherhood.”

That is, in fact, something cultural conservatives–really anybody, but cultural conservatives in particular–should celebrate. And if offers a clear window into Giuliani’s approach to public policy. Public safety per se wasn’t the foundational principle of Giuliani’s mayoralty; it was a beneficial, and in some cases practically revolutionary, outgrowth of its real foundation: dignity.

There is much that Missouri police have done since the tragic death of Michael Brown that robs members of the Ferguson community of their dignity. So the point is not tough policing uber alles, nor would that have been Giuliani’s choice. Indeed, as I wrote at the time, the hasty militarization of the county police force was a mistake. When you work for the government in some powerful capacity, and you approach a citizen, how you approach that citizen tells him how the government sees him. If you show up on a tank-like vehicle dressed like you’re about to enter a war zone, the message you send to the citizens you are policing is that the government sees them as a warlike population. St. Louis County did not declare war on the Ferguson community, but could you blame them for wondering if they had?

Giuliani took the opposite tack, refusing to behave like an invading general, despite what his dimmest critics might claim. And what was the result? To briefly revisit Malanga:

Giuliani’s policing success was a boon to minority neighborhoods. For instance, in the city’s 34th Precinct, covering the largely Hispanic Washington Heights section of Manhattan, murders dropped from 76 in 1993, Dinkins’s last year, to only seven by Giuliani’s last year, a decline of more than 90 percent. Far from being the racist that activists claimed, Giuliani had delivered to the city’s minority neighborhoods a true form of equal protection under the law.

Those of us who have lived in Washington Heights know this is no joke. Those who like to play expert on MSNBC are usually speaking out of ignorance.

And the key point here is to understand that the belief in the dignity of men, women, and children, of families, infused every decision Giuliani made with regard to improving public safety in minority neighborhoods and the city at large. Accusations of “white supremacist” thinking aren’t merely obscenely stupid, though they are certainly that. They also tend to come from those who have never shown the black community a fraction of the respect or service Giuliani has.

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Resisting the Ferguson Temptation

Some news stories are like Rorschach tests in that, irrespective of the facts of the cases, they inspire journalists, pundits, and politicians to ride all of their familiar hobbyhorses to death. That is the reality of the massive media coverage of the shooting of Michael Brown in Ferguson, Missouri by a policeman, and the violent aftermath of that event is so obvious it barely needs to be pointed out. But as cable news stations embrace the story as another, perhaps juicier version of last year’s trial of George Zimmerman for the shooting of Trayvon Martin, it might be better if more public figures embrace the stance enunciated by Rep. Paul Ryan.

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Some news stories are like Rorschach tests in that, irrespective of the facts of the cases, they inspire journalists, pundits, and politicians to ride all of their familiar hobbyhorses to death. That is the reality of the massive media coverage of the shooting of Michael Brown in Ferguson, Missouri by a policeman, and the violent aftermath of that event is so obvious it barely needs to be pointed out. But as cable news stations embrace the story as another, perhaps juicier version of last year’s trial of George Zimmerman for the shooting of Trayvon Martin, it might be better if more public figures embrace the stance enunciated by Rep. Paul Ryan.

Unlike virtually everyone else who has commented on the shooting and the subsequent rioting in Ferguson, Ryan simply asked that those who speak about these events refrain from attempts to exploit what has happened. Not succumbing to the temptation to use the social pathologies on display in Missouri as fodder to promote his new book, Ryan said the following:

“Don’t try to capitalize on this tragedy with your own policy initiatives, don’t try to link some prejudged conclusion on what’s happening on the ground right now,” the Wisconsin Republican said on “Fox and Friends.” “We should take a deep breath, let’s have some sympathy for the family and the community … and let’s let the investigation take its course and hope that justice is served appropriately.”

That’s good advice, and the media figures and so-called racial activists like Al Sharpton, who have descended upon Ferguson like a ravenous flock of vultures, would do well to heed it if they actually cared about the citizens of this troubled town or race relations across the country.

The Brown shooting, like the death of Martin, has become more of an opportunity to rehearse the usual litany of liberal ideological rants in which this heretofore-obscure town has become a symbol of racism. Rather than let the facts of the case—whatever they may be—be uncovered and then let the legal process play out, the impulse to prejudge the case has consistently prevailed. Whether that means an assumption that the police officer is guilty of murder or that the victim was somehow responsible for the incident, neither set of arguments has done much to advance the cause of justice of the peace of that community.

As Fred Siegel correctly noted in City Journal yesterday, most of those who have weighed in with commentary about Ferguson are stuck in the 1960s, a perspective from which all violence is viewed through the lens of the civil-rights movement. Those who play this game rarely stop to reflect that a half century later, an African-American president now governs the same country. Nor do they ponder the fact that solutions to the problems of such communities cannot be found in the playbook employed by those who protested against now vanished Jim Crow laws in an America that no longer exists. Sharpton and the pack of so-called civil-rights leaders who have parachuted into this mess have clearly done more harm than any possible good.

To acknowledge this reality does not oblige anyone to be indifferent to the anger of Ferguson residents about what they perceive as misconduct by the police or the ham-handed response to subsequent protests and riots by the authorities. But if we were to avoid merely repeating the same destructive narrative about racism that did so much damage in the Martin case, then it would behoove those commenting on the issue to refuse to rehearse, as Siegel says, “The grotesque pantomime of repression and redemption, riots and never-quite-achieved rewards, [that] plays out time and again.” As Siegel says, using Brown’s death to pivot into discussions about race, white flight, or urban/suburban jurisdiction disputes is a mistake.

Neither Sharpton nor anyone else talking on television really knows what happened when Brown died. Until we get a better handle on that question, they should stop fomenting the sort of anger that leads to riots and more violence as we have seen the last several nights in Ferguson. The cable news commentariat is as determined not to learn from their mistakes in this case, just as they were during Zimmerman’s trial. They will, instead, repeat the same cant about race and suggest more of the same failed policies that have helped perpetuate these problems rather than fix them. Until we learn to resist this temptation, as Siegel writes, that failure ensures “there will be more Fergusons.”

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