While black leaders relentlessly questioned the fairness of the Ferguson grand jury proceedings, President Obama on Tuesday demanded the prosecution of the violent looters who trashed the city and set the stage for a national debate on criminal justice reform and even possible race-based hiring changes at police departments.
Mr. Obama said he wanted to use the Ferguson tragedy to force communities to take “specific steps” to improve relations between their police departments and minority communities that often believe “our laws are not being fairly enforced.”
The president ticked off several solutions, such as better police training, and suggested police departments needed to become more racially diverse like their communities, hinting at the possibility of hiring quotas.
“We know that a police force that is representative of the communities it is serving makes a difference,” Mr. Obama said, urging a national dialogue on healing minority communities’ biggest frustrations with law enforcement.
“The frustration the people have generally … are rooted in some hard truths that have to be addressed,” he told a gathering in his hometown of Chicago.
While the president renewed his plea for calm, he pointedly called for prosecution of the looters, most of them minorities, who set fires to cars and storefronts and smashed windows in Ferguson on Monday night.
SEE ALSO: Legal scholars praise Ferguson grand jury for fairness beyond the norm
“Those are criminal acts. People should be prosecuted,” he said.
Mr. Obama’s comments were echoed in Washington by his retiring attorney general, Eric H. Holder Jr., who said he hoped the Ferguson case would result in a dialogue about reforming the criminal justice system.
Possible civil rights case
The attorney general said the Justice Department’s civil rights investigations in Ferguson will “continue to be thorough, they will continue to be independent, and they remain ongoing.”
“They will be conducted rigorously and in a timely manner so that we can move forward as expeditiously as we can to restore trust, to rebuild understanding and to foster cooperation between law enforcement and community members,” Mr. Holder told reporters Tuesday.
But former FBI Assistant Director Ron Hosko said it is unlikely that the Justice Department’s investigations would reach a conclusion different from what the Missouri grand jury did.
“By and large, the bulk of the evidence that federal prosecutors and investigators would look at has been already examined by this grand jury,” he said.
St. Louis County prosecutor Robert McCulloch made a similar point Monday night in announcing the grand jury’s decision — that the state showed all the evidence it had to the feds, and vice versa.
The Justice Department likely won’t announce any decision for several months, allowing investigators time to work through the case and for emotions in Ferguson to subside, said Mr. Hosko, who now serves as president of the Law Enforcement Legal Defense Fund.
“They need to be deliberative, they need to be smart, they need to look at it in a fair and full light,” he said.
Meanwhile, police in Ferguson braced for another night of tension and mayhem. Missouri Gov. Jay Nixon more than tripled the state’s National Guard force in the city, to about 2,200 troops, and charged them with aiding local officers in keeping the peace.
Grand jury process
Away from the violent protests, black community leaders and legal scholars heatedly debated whether the grand jury process that cleared Officer Darren Wilson in the shooting death of an 18-year-old black man was fair.
Attorneys for Michael Brown’s family and civil rights activists blasted the grand jury process used by the St. Louis County prosecutor’s office, saying it was rigged to ensure Officer Wilson was not indicted in the shooting death of Brown. Several legal analysts dismissed it as a blistering critique.
Anthony Gray, an attorney for the Brown family, said it’s a prosecutor’s job to recommend specific charges rather than present all the evidence and leave the decision up to a grand jury.
“If they present evidence to indict, there would have been an indictment,” he said. “If they don’t present that evidence in a manner to secure an indictment, then there won’t be an indictment. So this grand jury decision, we feel, is a direct reflection of the sentiments of those that presented the evidence.”
Several legal analysts told The Washington Times in interviews that the process was unusual but fair. Indeed, if it was unusual in any direction, it was in favor of fairness and openness.
Lawyers and academics told The Times that Mr. McCulloch sought unbiased justice in presenting the jury with every piece of evidence and then making that evidence public.
“It was the most thorough grand jury investigation that I’ve ever heard of,” said Stephen Saltzburg, a professor of law at George Washington University Law School.
’Ham sandwich’ standard
Richard Kelsey, assistant dean for management and planning at George Mason University law school, said what makes this case more unusual is that Mr. McCulloch sought justice rather than an indictment.
“More recently, everyone has heard the statement that a good prosecutor can indict a ham sandwich,” Mr. Kelsey said. “It is true that it is usually easy to get an indictment, but is that a just process? I would say no.”
Legal scholars say that Mr. McCulloch’s decision to release the evidence presented to the grand jury for public scrutiny also was unprecedented because grand jury hearings usually are shrouded in secrecy, even after the fact.
“Usually you don’t hear what evidence they considered,” Mr. Saltzburg said. “I give the prosecutor top marks in terms of transparency and accountability.”
But lawyers say in this case, a strong push to indict Officer Wilson merely based on the easier legal standard of “probable cause” would have merely set up a trial where the prosecution likely would have failed to get a guilty verdict based on the much stiffer “beyond a reasonable doubt” standard.
“Even if you could have gotten an indictment, what good does it do to get an indictment and then have your case thrown out?” said Gabriel Chin, a professor at the University of California Davis School of Law.
“You go ahead and do a weak grand jury presentation, but if you do it in a case that’s actually weak, how are you going to feel when you are prosecuting a case that you really shouldn’t be prosecuting?” Mr. Chin said.
Lawyers say grand jury cases in general are subject to pro-prosecution bias because a district attorney will try to summarize the case to obtain an indictment, possibly hiding some of the evidence. Meanwhile, the accused has no right to an attorney, to present evidence on his behalf, or even to know that his indictment is being considered — all circumstances that will not be the case during a trial.
“What you hope is that it’s a neutral process, but it’s not when you don’t have anybody in there for the other side,” said Lee Cox, a Texas-based criminal defense lawyer and former prosecutor.
Other racially charged failures
New York City defense attorney Barry Slotnick noted a similar result in the case against George Zimmerman in Trayvon Martin’s death, which also inspired charges of racism and massive public demonstrations over the killing of a black teenager but produced no conviction in the legally relevant forum.
“If we remember the Zimmerman case, that grand jury indicted him, and the trial jury acquitted him and then there was a riot,” he said.
Mr. Slotnick defended Bernard Goetz, dubbed the “Subway Vigilante” after he shot four black men he said tried to rob him on a city subway train in 1984. That case also brought accusations that Mr. Goetz acted out of racial bigotry, but Mr. Slotnick said personal feelings about race shouldn’t overshadow the legal process and the facts.
“When race becomes an issue, it may unfortunately take our eye off the ball,” he said. “We shouldn’t second-guess the grand jury. The fact of the matter is that they’ve come to a conclusion.”
Benjamin Crump, an attorney for the Brown family, said the grand jury process is failing black families nationwide.
“We object to this process because all across America, whether it’s in New York, Los Angeles, California, Cleveland, young people of color are being killed by police officers and the local prosecutors [put] together this … unbiased grand jury and it continues to yield the same results,” Mr. Crump said.
“We know that our children deserve equal justice, just as any American,” he said. “We pray that prosecutors will say, ’We want people to believe in the system,’ and if that means appointing a special prosecutor who has no relationship with the accused officers that you do so.”
Prosecutors and cops
Liberal and black activists previously raised doubts about the neutrality of Mr. McCulloch, whose policeman father was killed by a black man.
Mr. Cox argued that in many cases in which a grand jury is seeking an indictment for a police officer, the prosecutor will try to protect the officer.
“Officers hardly ever get indicted for anything. It’s common of the prosecutor and the police. They are in law enforcement together, so the public’s perception is that nothing is going to happen to the officer anyway because they are both in law enforcement,” Mr. Cox said.
Criminal defense lawyer Guy Fronstein agreed that prosecutors and police have an “incestuous” relationship in grand jury proceedings but said that did not impede justice in this case.
“The grand jury system is a one-sided kangaroo court, which virtually always indicts since jurors hear the prosecutor’s version of events and rule without having ever heard from the defense,” Mr. Fronstein said. “However, due to the brotherhood between prosecutors and police officers, when a police officer is the target of a prosecutor’s case, it is almost predetermined that the officer will not be indicted.”
But he argued that the “incestuous relationship between prosecutors and officers” was not a factor in Ferguson because “there simply was not enough evidence for the grand jury to find probable cause that Officer Wilson committed a crime. The grand jury got it right.”
Although the jury did not indict Officer Wilson on state homicide or other charges, the case is not necessarily over.
Besides the possibility of federal charges of civil rights violations, the Brown family can bring civil lawsuits against Officer Wilson and the Ferguson Police Department.
“The family could sue and get their day in court,” said Mr. Saltzburg, adding that although former football star O.J. Simpson was acquitted of murder charges, he was found liable for the deaths of Nicole Brown Simpson and Ronald Goldman in a lawsuit.
“I’d be surprised if they didn’t bring [to a civil court] the public stance that they took that this was unjustified,” Mr. Saltzburg said.
Mr. Hosko, the former FBI assistant director, said he supports efforts to give police officers greater training in nonlethal tactics and provide them with equipment such as body cameras. But, he said, “that training and that equipment all comes with a cost.”
“We’re in an era where for 10 years police offices have gotten smaller and smaller because of budget cuts,” he said.
• Kellan Howell can be reached at khowell@washingtontimes.com.
• Phillip Swarts can be reached at pswarts@washingtontimes.com.
• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.
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