Ferguson: Beyond the protests and politics

RANCHO SANTA FE, Ca., August 25, 2014 – The shooting death of any human being is a tragedy. However, the shooting death of a Black individual by a White police officer is a temptation for the media and a selfish opportunity for others. If you had any doubt, you need only look at the shooting of Michael Brown in Ferguson, Missouri.

In a rational world, a legal process would be followed; the same legal process that is followed in every other type of case. Evidence would be gathered including but not limited to forensics, witness testimony, and any possible recording(s) of the incident.

If the Prosecutor’s office believes the evidence suggests that a person has committed a crime, the individual is arrested and booked, and a bail hearing is conducted. Then, an arraignment is held in which the criminal charges are read, the Defendant is asked if he or she has an attorney or needs to have one appointed by the Court, and the Defendant is asked how he or she pleads (i.e., “guilt,” “not guilty,” or “no contest”). Bail may be modified at this point at the discretion of the presiding Judge.

In the event of a “not guilty” plea, the next step is either an adversarial preliminary hearing (in which the Judge hears from both sides) or a non-adversarial hearing before a Grand Jury comprised of members of the community (in which only the Prosecution’s facts are heard). This step has nothing to do with determining guilt or innocence. It merely decides whether there is sufficient evidence to indict the accused and proceed to trial.

The Grand Jury need not reach a unanimous decision; it only requires a super-majority of two-thirds or three-fourths (depending on jurisdiction). Additionally, its role is advisory. Even if it concludes that there is not sufficient evidence to proceed, the Prosecutor may still independently choose to indict (although, the Prosecutor will have to prove to the trial Judge that sufficient evidence does in fact exist).

The reason this process has been put in place is to prevent a rush to judgment by an individual Prosecutor while preserving a very cautious approach to the dismissal of charges. The system is designed to support indictment if there is a reasonable amount of evidence that suggests a crime may have been committed by the accused.

Yet, there are those who disregard the importance and safeguards of this process when it is beneficial to their cause.

For example: A few individuals consistently travel across the country to give impassioned speeches about “the need for justice” while essentially ignoring the well-established process that has been put in place to assure it. Instead, they inflame emotions and call for protests in the street.

They emphasize that such protests should be “peaceful” while knowing full well that history suggests that this rarely will be the case. A small group of individuals can be counted upon to use the protests, which invariably grow larger at night, as a subterfuge for vandalism and looting.

Major media outlets will send dozens of reporters and camera crews to such sites in anticipation of vandalism and looting. Nothing makes for better television than broken windows, burning cars and buildings, and the ransacking of a few stores… unless the call of “shots fired” is heard. Tear gas, tasings, and baton beatings add to the video excitement as do worthless interviews of uninformed individuals.

Governors mobilize their National Guard (particularly during election years) to underscore their responsiveness and concern. They call for quick prosecutions; skipping all but the trial phase of our judicial system.

If the initial rabble-rousers have done their job well and the media is fully engaged, higher-ranking public officials may even become involved. The President might even interrupt a golf game to tamp down embers of animosity and even loan his plane to the Attorney General to visit the scene to insert Federal law into a crime that otherwise can be readily managed by the State.

This is a synopsis of what transpired recently in Ferguson, Missouri. Rather than allowing the facts to unfold, certain individuals immediately arrived on the scene to demonstrate why they would be the favorites to win Gold in a Conclusion-Jumping event if it were to be held in the next Olympics. They routinely pretend to possess the ability to see into the hearts and souls of individuals they have never met… shrouded by the word “racists” if their prophetic abilities are challenged.

“Pathetic” might be a more accurate description of their abilities than “prophetic.” Most of these individuals have had decades to author a solution as opposed to merely inciting anger. What material accomplishments do they have to show for those years?

Then, there is the media. The news side of the industry used to function as a profession. It once reflected the responsibility that is inherently tied to its First Amendment protection. Unfortunately, those days have passed. Only a small cadre of reporters and networks seem to believe that the Press still has a duty to capture and present the facts in a trustworthy manner.

Perhaps this is because shows like Jersey Shores, Honey Boo Boo, Duck Dynasty, and Sixteen and Pregnant draw large audiences and loyal followers. After all, the news is no longer about communicating the facts and allowing individuals to reach their own conclusions. It’s about spinning stories in a manner that attracts and retains viewers… no matter how biased and benighted. It’s focused on the advertising dollars that are tied to “share.”

We also have our highest elected officials. They ostensibly are the best and brightest America has to offer, or at least they should be in a society that has the freedom to cast an informed vote. In the case of the President and the Attorney General, we even have attorneys who should be familiar with Due Process and the concept of “innocent until proven guilty.”

Both gentlemen offered their comments with regard to Ferguson under the guise of trying to instill “calm” and “preserve justice.” However, their comments seemed to have a prejudicial tone.

President Obama was measured in his response this time; not claiming any family resemblance if Michael Brown had been his son (perhaps learning from the Trayvon Martin incident). Instead, the President said: “I urge everyone in Ferguson, Missouri, and across the country, to remember this young man through reflection and understanding. We should comfort each other and talk with one another in a way that heals, not in a way that wounds.”

Subsequently, the President appropriately condemned violence, vandalism and looting as well as the police’s use of excessive force.

These words, taken alone, articulate how we should approach these situations. However, the President also inserted the Department of Justice squarely into the issue by calling for an FBI investigation and for Attorney General Eric Holder to visit Ferguson, Missouri.

We never seem to question why local and State officials and laws are considered too incompetent to address circumstances such as these when a particular racial combination is involved. This isn’t to suggest that the facts will not reveal the influence of a racial motivation or cultural gap but rather that we should allow the facts to make that determination rather than the impressions of one or more elected officials (regardless of the office they hold).

After a brief visit to Ferguson, AG Holder called a press conference as well in which he shared a personal story of a time when he was mistreated on an apparent basis of race. While this conforms to a Clintonesque “I feel your pain” moment that may provide relief to some, it actually underscores a potential personal bias on the part of the Attorney General.

This Nation needs a much greater level of impartiality particularly among its highest-ranking leaders.

Mistrust does exist between certain communities and the police. It also exists between many other groups of people and our elected officials… not because of race, but because of a general breach of integrity.

If we do not take steps to fix the mistrust, it will continue. All the rhetoric and protests in the world won’t affect change. Change requires action.

The President has the greatest power and individual authority of any elected official.  As he has often self-proclaimed, he also has a pen and a phone. He should use them for more meaningful things than to promote his personal agenda.

The purported economic recovery has not been enjoyed by the masses. This is particularly true among Blacks and Hispanics, who were crushed by unemployment and crushed by the decrease in their median net income and net worth. What progress has been made in these areas over the past six years?

Education and opportunities are still lacking among our urban population. What progress has been made in these areas over the past six years?

Affirmative action “points” do not fix the disparity in our education system; they only temporarily mask the problem. An expanded welfare system doesn’t resolve poverty; it entrenches it. False political promises that are made to lure votes do not build trust; they destroy it.

If we fix these problems rather than pontificate about them, many of the cultural differences, including the mistrust and misunderstanding that contribute to Ferguson-like scenarios, will dissipate.

To the President’s credit, he has at least authorized an investigation into the militarization of local law enforcement that has become prevalent during his two terms.

As for the distrust that exists between segments of our communities and the police and justice system, what solutions has the Attorney General crafted in the past six years?

For the sake of argument, let’s assume that the police officer in Ferguson acted inappropriately. Under State law, he is likely to then be charged with crimes ranging from Manslaughter to Murder. Is charging him with a violation of Michael Brown’s civil rights more meaningful? If so: How?

It almost sounds demeaning to the decedent to claim that the loss of his life has been reduced to a violation of his civil rights. It does little more than allow the Federal Government to gain exposure from the case and strip away the power of the State court.

Doesn’t the latter further undermine the trust the community is likely to have for the court system (i.e., the Federal Government had to take over the case to make sure justice was served)?

Think about the process that is being circumvented. In a Missouri court, the Grand Jury would be comprised of Ferguson residents unless there was a change of venue. Ferguson’s population is 70 percent Black. Therefore, the Grand Jury is statistically likely to reflect the racial mix of the community. No such guarantee exists in the Federal Court process, which only offers a preliminary hearing.

The only advantage the preliminary hearing offers is that it generally is held in public whereas a Grand Jury convenes in private. However, remember that a preliminary hearing is adversarial. While the Prosecutor gets to present evidence, the evidence can be rebutted by the Defense and witnesses can be cross-examined.

Conversely, under a Grand Jury model, the Defense does not participate. Therefore, the Grand Jury approach is more likely to conclude that there is probable cause for an indictment since it only hears the facts that are most favorable to the Prosecution. Subsequently, the actual trial is subject to public scrutiny, and any concern about the “secret nature” is removed.

Given that our Federal officials have made far more speeches than progress when it comes to overcoming the challenges of our urban Black population (and other disadvantaged classes), why should we be so quick to yield to that same governing body? Why not follow a process that has worked for hundreds of years; a process that is seriously challenged only when the media, external agitators, and politicians join forces to create a level of exaggerated interest?

Why not try a new approach?

Conduct truly peaceful protests during daylight hours, and don’t wear masks if you believe in your message;
Invite the media to cover the story but not to sensationalize it;
Allow the families who have suffered a loss (and who almost always demonstrate far more class than the leeches who exploit the situation) to retain their dignity and grieve privately;
Discourage outside individuals from using isolated incidents and local tragedies to build their national image; and
Extend that same discouragement to elected officials and celebrities who seem more interested in a photo op than a solution.

To those same elected officials and celebrities: It’s time to “put up or shut up.” Offer solutions rather than speeches. Craft legislation and reach into your own pockets to help rebuild community relations. Stop talking and start “doing.”

Let’s see peaceful protests that call for solutions. If our officials do not hear us from the streets, then let them hear us from the polls.


T.J. O’Hara is an internationally recognized author, speaker, and strategic consultant in the private and public sectors. In 2012, he emerged as the leading independent candidate for the Office of President of the United States and the first nominee of the Whig Party in over 150 years.

This article first appeared in T.J. O’Hara’s recurring column, A Civil Assessment, in the Communities Digital News (CDN).