Americans may be a smart, educated people, but we are lazy and ignorant. It’s too much effort for our delicate sensibilities to gain a deeper understanding of how our nation functions. This is why the Ferguson Lie happened. This is why the Ferguson Lie works.
That the grand jury did not indict Ferguson Police Officer Darren Wilson was a foregone conclusion. To those of us who don’t have to look up a study or read a law review article to understand how indictments happen in the real world, the outcome was clear when St. Louis County District Attorney Bob McCulloch announced that he would present all the evidence to the grand jury. Wachtler’s “ham sandwich” has grown trite in this discussion.
The Ferguson Lie is an appeal to our sense of fairness and transparency. We were played. McCulloch’s lengthy spiel before announcing “no true bill” was to spread the lie. To the ear of the media, McCulloch’s pitch was appealing; the grand jury heard all the evidence. The grand jury transcript will be disclosed to provide complete transparency. Witnesses lied to the media, but the grand jury heard the truth. The grand jury saw the hard evidence. Nine whites and three blacks, so no one would think that the grand jury was denied the voice of people of color, sat on the grand jury, which met for 25 sessions and more than 70 hours of testimony.
The grand jury did the dirty work that America needed done. The grand jury has spoken.
This is the lie.
The description of what happened with the grand jury, how it heard all the evidence, how it will be transparent, is intended to appease our innate sense of fairness. Americans love things that appear fair, even if we don’t quite understand what actual fairness means. This sounds as if it was done as well, as fairly, as it could possibly be done. But it’s a lie.
“All the evidence” is a phrase that applies to a trial. A trial is a procedure that happens in an open courtroom, where adversaries zealously present their case and challenge the other side’s case. It is transparent because we can watch it unfold, develop, happen before our eyes. We hear the questions and answers, the objections and rulings. We hear the request to admit evidence and the voir dire and challenge to its admission. We hear the opening arguments and summations.
McCulloch put on a play in Ferguson. His press conference announcing the foregone conclusion was remarkable in many ways, not the least of which was how he sold the argument for “no true bill” rather than the position he, as prosecutor, was duty-bound to champion. The man charged with prosecuting killers argued the case for not indicting Wilson.
McCulloch didn’t have to go to the grand jury at all. He could have prosecuted Wilson by fiat had he wanted to do so. He did not. He was not going to be the person who charged Wilson with any variation of homicide. But in deciding to take the case to the grand jury, the lie was born.
Whether Darren Wilson would have been convicted after trial remains unclear; perhaps the case against him for the killing of Michael Brown wouldn’t have survived scrutiny. Perhaps the structural benefits given law enforcement to kill without fear would have allowed him to circumvent conviction. Perhaps he wasn’t guilty. We will never know.
The grand jury transcript offers little comfort. Those who explain that it’s transparency are lying to you. It’s all part of the Ferguson Lie. While it tells us what was presented, it doesn’t tell us what was not. It’s unchallenged, unquestioned and unquestionable evidence. There is no adversary in the grand jury to roar against its one-sided presentation.
That it ended without the prosecutor asking the grand jury for an indictment is unheard of. By this omission, it ended with the prosecutor telling the grand jury that a close call goes to the defendant. It ended as it was meant to end, as the foregone conclusion demanded it end.
The merit of the grand jury presentation relies entirely on our acceptance of Bob McCulloch’s office desiring an indictment against Darren Wilson. Just as a prosecutor can indict any damn person he pleases, he can similarly make sure a person is not indicted. He does so through subtle tricks. He does so through big lies. Like presenting “all the evidence.” Like the Ferguson Lie.
Had the prosecution desired an indictment against Ferguson Police Officer Darren Wilson, the presentment would have taken an hour, maybe two, and there would have been a true bill by close of business the next day, well before Michael Brown had been laid to rest. The grand jury isn’t the venue to present “all the evidence.” That’s what trials are for. The grand jury serves a very limited function, to determine whether sufficient evidence exists so that there is probable cause to proceed to trial.
In Ferguson, the grand jury served a very different purpose. It was the mechanism by which the guardians of the status quo protect the American dream of an orderly society, where the appearance of challenge is preserved so that lazy and ignorant Americans can sleep well at night, secure in the belief that their officials and institutions are doing the job of protecting their comfort against the unsavory and the malcontents.
This is the Ferguson Lie. Will America fall for it? Of course we will, just as we have so many times before. It’s too much work to do anything else. It’s always been too much work for Americans.