The jury is still out on the impact of Ferguson

RANCHO SANTA FE, Ca., December 2, 2014 – It has been a week since the not-so-grand jury in Ferguson, Missouri, declined to indict Officer Darren Wilson in the shooting death of Michael Brown. However, an indictment was handed down. It simply had nothing to do with the officer or victim and was extrajudicial in nature. It was an indictment of our society in general, its lack of respect for people and the law, and its misplaced priorities.

As in most cases, money and power lie at the root of the problem. Our media outlets, political leaders, and even those who profess to be religious organizers all fall prey to it.

They collectively jump to conclusions that support the most banal beliefs of their targeted audiences; beliefs that readily enflame emotions that can be converted into ratings, votes, contributions, and status. If we allow it to continue, we can expect the status quo to be maintained.

Let’s step back and examine what transpired in Ferguson to better understand how and why the system is failing us.

For over 200 years, we were a “Nation of Laws.” More recently, we have become a “Nation of Exceptions.” Ferguson merely underscores the problem.

The first exception came in the form of prejudgment. One of our fundamental rights in the criminal justice system is the “presumption of innocence.” Apparently, we now have an exception if a police officer is involved in the deadly shooting of an unarmed subject… at least when the police officer is White, and the victim is Black.

To understand the racial distinction, research the deadly shooting of an unarmed 20-year-old, Dillon Taylor, by a “non-White” police officer, in Salt Lake City, Utah, that occurred two days after Officer Wilson’s shooting of Michael Brown. Compare and contrast the media coverage, political interest, and the level of social anger.

As an aside: The police officer in Salt Lake City was wearing a body camera at the time. As a result, it will be interesting to see whether that footage exonerates or indicts the officer involved. For those who care, Dillon Taylor’s character was besmirched as if to automatically justify the shooting. It remains to be seen whether his past was at all relevant to the confrontation.

Speaking of character: Many of those who wanted to jump to the conclusion that Officer Wilson was “not guilty” before the facts were in evidence often did so by attacking the reputation of Michael Brown. This is not how the system is supposed to work.

Michael Brown’s character should only have come into question if it demonstrated a continuing course of conduct or bore specific relevance to the incident during which his life was taken. Unfortunately, this has become another exception to the system.

Stereotyping a Black victim as “the instigator” has become standard fare in certain segments of the media and political leadership. It is just as inappropriate as typecasting every police officer as little more than a vigilante with a badge, which seems to be a favorite pastime of the competing media and political factions. However, it has proven to be an effective way of raising money, locking in the votes of certain constituencies, and even inflating the importance of certain individuals whose roles as agitators serve little productive purpose.

This brings us to the grand jury itself.

It has become popular to repeat the old adage that “you can get a grand jury to indict a ham sandwich.” Based upon general statistics, that is actually a relatively accurate description of the grand jury process… when it isn’t degraded as it was in Ferguson.

There is a corollary to the “ham sandwich” analogy that has been overlooked with respect to Ferguson’s grand jury: Prosecuting attorneys have an extremely high “win” percentage when it comes to cases that go to trial. That is because they are elected officials, and their “win” percentage is paraded around as a medal of honor when re-election is at hand.

As a result, prosecutors generally only bring cases to trial that they expect to win. Correspondingly, they only submit cases to the grand jury (or to a Judge in a preliminary hearing) for which they have compelling evidence.

As Shakespeare might say: “Therein lies the rub” with respect to the Ferguson grand jury. The released evidence presents the fact pattern of a case the prosecutor probably would not have submitted to a grand jury absent the media and political pressure that was being brought to bear.

While eyewitness accounts stirred the flames of the growing mob (no pun intended), such evidence is notoriously weak. To highlight the problem: If four eyewitnesses were to see a “ham sandwich,” one would swear it was pastrami, another would proclaim it to be prosciutto, a third would say that it was baloney, and a fourth might correctly identify it as ham. As a result, physical evidence (and even circumstantial evidence) is more relevant.

For example: Dorian Johnson, who was with Michael Brown when the latter was caught on tape committing a theft and assault at a local convenience store a few minutes before the shooting, stated that he saw Officer Wilson shoot Michael Brown in the back. Yet, the physical evidence demonstrated that all of the entry wounds were in the front of the decedent’s body.

Mr. Johnson also said that Officer Wilson was standing face-to-face with Michael Brown, who had his hands in the air in surrender when the Officer shot him several more times. Yet, the physical evidence suggests that other than the hand wound that occurred during a previous struggle in the car, the remaining entry wounds did not occur at close range… nor was Michael Brown shot while on his knees with his hands in the air as other eyewitnesses suggested.

This does not mean that any of these individuals intentionally lied. They expressed their interpretation of what they believed they saw. However, their accounts were not substantiated by the physical evidence.

Conversely, other eyewitnesses provided testimony that conformed to the physical evidence and tended to corroborate the account given by Officer Wilson.

Any good prosecutor would have drawn a conclusion with regard to the credibility of the various witnesses and determined that a conviction would be highly unlikely given the physical evidence, the corroborating witnesses, and the circumstantial evidence that was available. It is extremely unlikely that the case would have been brought before the grand jury. Public pressure created the exception.

To make matters worse, public pressure disrupted the normal grand jury process as well.

The reason “ham sandwiches” can be indicted is because when a case legitimately comes before a grand jury, only the prosecution’s side is heard. Grand jury hearings are typically non-adversarial and are only meant to determine whether there is sufficient evidence to establish “probable cause,” and they only require a super-majority rather than unanimity. An exception was made in this case, and nearly all of the evidence was presented in the name of “transparency.”

The whole “transparency” issue arose because people feared that the secretive nature of the grand juries could be manipulated. That is not why grand juries are conducted in secret. The real reasons are twofold: (1) To protect the reputation of the defendant in case an indictment is not issued, and (2) to encourage witnesses to speak freely without fear of retaliation.

An exception to the former occurred within a few days when Officer Wilson’s name was “leaked.” An exception to the latter occurred when the prosecutor’s office released the evidence when the case was “closed” after the grand jury’s decision… all in the name of “transparency.”

This plethora of “exceptions” created a travesty of the judicial system. The system simply gave way to the pressure of the press, the politicians who needlessly interjected themselves into the issue (on both sides of the aisle), and a few individuals who chose to build their reputations and status on the backs of Officer Wilson and Michael Brown.

As a result, obligatory protests were held, and they were accompanied by the habitual array of arson, looting, and vandalism that exploits them. While law enforcement behaved with relative restraint, its more unprofessional elements were magnified by the nature of the events. In the end, legitimate issues remain unchanged.

For example: Ferguson’s population is about 70 percent Black. Yet, Blacks are dramatically under-represented politically. Where is the effort to engage the Black community politically? One Party apparently doesn’t believe the community will embrace it while the other Party takes the community for granted. Let’s fix that!

Correspondingly, Black leaders from outside the community rightfully argue that only three of Ferguson’s 53 police officers are Black. They see this as an injustice and racism. Unfortunately, they do not see how they contribute to the problem on an ongoing basis.

When individuals, who ostensibly are leaders in the Black community at the national level, assail police departments in particular and the judicial system in general (along with other government services), they vilify those roles. How many youths in the Black community are going to be inspired to pursue careers in law enforcement, etc. if Black leadership continually denounces and disparages those who serve in such capacity? Given that reality, it is unlikely that law enforcement will reflect the demographic mix of its community any time soon. Let’s fix that!

And finally, rather than fomenting anger with media distortion and political rhetoric in hopes of growing ratings and core constituencies, let’s ask those two groups to demonstrate more responsibility.

More facts and less spin would be a good starting point for the media. Stop treating us as if we only have the attention span and intellectual capacity of a gnat. Give us more time and more details rather than recycling the same old tripe in sound bite segments for weeks on end. Please fix that, or we will fix it for you by finding other outlets for our news.

As for our elected officials: How about providing an equal education for all regardless of where they live or how much money their parents make? Fixing that problem would create new opportunities and provide inspiration to future generations to achieve their highest potential. It might also break the cycle of dependency that has mired far too many Americans into a perpetual state of poverty while elevating illiteracy to a shockingly high level. Please fix that, or we will find someone who will succeed where you have failed.

May the superficial outrage we see in protest of the killing of one individual, who may or may not have been at least partially culpable for his own demise, turn into outrage with those who would exploit such an issue for personal gain; those who would tear our country apart rather than strive to bring it together. And may we see “outrage” by way of an informed vote in 2016 that purges those who have had decades to rectify these problems but, instead, have chosen to focus on partisan issues, “legacy” programs, and re-election. Perhaps then, Ferguson will have become the catalyst for something special.


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).