Embracing the Ferguson model, prosecutors will hereinafter represent the defendant in the grand jury. That is all.
—Twit, 26 November, 2014, 9:11 a.m.
There was the process. There was the evidence. There was, unexpectedly, a synergy of the two. It was not only theatre to appease the critical demands of the angry locals, but one carefully orchestrated to make sure that there would be standing ovation at the end.
Many have scratched the surface of the grand jury proceeding that returned no indictment of Darren Wilson for the killing of Michael Brown, concluding that it was a sham, never meant to indict but to create the show that quiets the maddening crowd. They think this is an epiphany.
Others have noted that this isn’t lawful, as the prosecutor can’t present a case to the grand jury in which he doesn’t believe, and to do so only to silence demands is unethical (they call it unlawful, but they must be forgiven such minor imprecision). As was already noted, we are a lazy and ignorant people when it comes to the processes of government. Perhaps naïve should be added to the list.
Much of what our government does serves the appearance of lawfulness without its substance. This is the Lie, and still the groundlings can’t see it. Yes, it was a show. Yes, it was improper. Yes, it was done to quiet demands for blood. Yes, this is all very wrong. So what? What the hell do you think you can do about it? They play a game that perpetuates the status quo, and the handful of you who realize it’s wrong think you’ve discovered gold. Tomorrow, you will go back to playing video games and care nothing about the next wrong. Hell, you wouldn’t even know it happened if it smacked you upside the head.
If you had the capacity to dig deeper, you would realize that this is mundane manipulation. It happens all the time, but you’re just too lazy and ignorant to realize it. The one time you stumble upon it, you’re shocked and outraged. This is WRONG!, you scream. Of course it is, and it’s wrong every time it happens, even if you’ve never been bothered to notice it before. Welcome to the club, kids. This battle has been going on forever. That was the whooshing sound you heard.
Is there a takeaway here that can make you feel better, make you feel that there is something to be gained from this unpleasant experience you’ve endured? Some have argued that we should get rid of the grand jury process, a worthless sham. The elimination of this layer of process would serve no purpose. Sure, a prosecutor may be able to indict a ham sandwich except when the ham is a cop in Ferguson, but it’s still an additional hurdle.
But what non-lawyers don’t realize is that it generates testimony that can be used to impeach at trial. and sometimes, rarely but sometimes, it actually works and a non-cop defendant walks free. There’s no downside to keeping the process, even if the upside isn’t huge. On a deeper level, this applies to all of the system; it’s the nation’s longest running dog and pony show, but the point of fighting is for those rare, occasional successes. If we didn’t fight it, there would be no wins at all. A few are better than none.
While the grand jury’s decision not to indict may, to some, taste of injustice in this particular case, one should always be wary of wishing for a more zealous prosecutorial approach that infantilizes citizens and robs them of their rightful role in deciding who should, and should not, be charged with serious felonies.
This is a nod to the occasional win, the hopeful potential that the grand jury could, in a better world, serve a higher purpose than rubber stamping the outcome sought by a prosecutor. Rather than wallow in cynicism and give up hope, we should strive for a better system.
But Harvey then crosses the border between optimism and irrational exuberance:
There are two lessons to be learned from Ferguson, if we are wise enough to understand and act on them.
First, grand juries should be relied on more, not less, especially in cases that arouse popular suspicion, passion or cynicism. Grand jury reforms should be enacted, on both the state and federal level, requiring that grand juries proceed in much the manner that McCulloch ran the St. Louis County grand jury, with an impartial prosecutor, the lawyer representing the target if the lawyer requests to be present, and with full transparency at the end of the process.
Second, the race problems that permeate so many police-citizen interactions nationwide require us to closely examine these systems, and introduce the necessary reforms and remedies.
Much as I usually agree with Harvey, the notion that the grand jury process for non-cops would ever be reformed such as to resemble what happened in Ferguson is outlandish. It’s impractical, as the time that would be required to put every witness in every case into the grand jury, could never happen. The country refuses to fund indigent defense, which is constitutionally mandated, and the cost of such grand jury reform would be astronomical. Not a chance in the world, particularly since it’s not constitutionally required.
But I also can’t share Harvey’s rosy view of the internal mechanics of Ferguson’s presentment. There was no “impartial prosecutor,” but one who brutally challenged inculpatory witnesses while spoon-feeding answers and excuses to the defendant. As the grand jury transcripts reveal, not only was this a stagecraft, but not even good stagecraft.
I’ve shared Harvey’s point in the past, often with regard to light sentences imposed on favored defendants, as not being targets of derision, but models for all sentences. I can’t share it this time. Not only is there no chance that the grand jury proceeding provided Darren Wilson will serve as model for reform for others, but it’s impossible to overlook the fact that there was nothing about it, not even the self-serving disclosure of transcripts and exhibits, that was untainted.
Like Harvey, I too would love to live in a nation that truly adhered to constitutional principles, including fundamental fairness in the grand jury process that served a higher purpose than handing prosecutors indictments upon demand. If there was any chance, any chance at all, that Ferguson might open the eyes of Americans to grand jury abuses such that meaningful reform might come, I would join Harvey in his plea for understanding.
But neither you nor I, nor any non-cop, will ever see the day when we are treated like Darren Wilson in the grand jury. And DA Bob McCulloch’s handling of this indictment deserves no better than cynical derision, not even if we cherry-pick the parts we like and pretend the presentment wasn’t a deliberate sham. There is a time to make the best of a bad situation, and then there is a time to be realistic so that the bad situation doesn’t continue to recur. I doubt we can achieve the latter, but if we can, that alone would prove huge.