The jury is still out on the impact of Ferguson

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Ferguson protests

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 which 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, the 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 fair 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 shortly 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 among 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 an inspiration to future generations to achieve their highest potential. It might also break the cycle of dependency that has mired far too many Americans in 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 are 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.

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A Civil Assessment has been designed to serve as an Op-Ed forum for you. You are invited to offer your opinion and to discuss your position in the Comment Section. Please be sure that your “assessments” remain “civil” so that they may earn the respect of others.

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TJ O’Hara provides nonpartisan political commentary every other Monday on The Daily Ledger, one of One America News Network’s featured shows on AT&T U-verse and VerizonFiOS channels at 11:00 PM Pacific with rebroadcasts the next day at  6:00 and 10:00 AM Eastern / 7:00 AM Pacific.

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  • Ocean Sprayz

    Each of us should also remember that George Mason’s Virginia Declaration of Rights is the source of the 2nd Amendment.

  • Eric N Keya Erickson

    I agree that responsible media and better education for all would make a huge difference. I think there are some other factors at play here as well.

    First, police departments in this country have a huge PR problem. I think most police officers are good people. I worked with several of them during my time in the Air National Guard and as a security officer when I was in college. We’ve all met the exception, the guy who pulls you over for something minor and treats you like you’re Al Capone, and unfortunately this guy becomes the stereotype for the department. I think a big part of the perception problem is that these guys ride around in souped up cars with their sunglasses and cell phones (while it’s illegal for the rest of us to talk on our phones while driving), and only interact with citizens when a crime has been committed. They need to get out of their cars and walk the beat more, get to know people in the community better. This would also help the “donut shop waistline” perception.

    Second, police officers are gaining a reputation (strongly pushed by the media), of being “shoot first, ask questions later,” wild west types. They seem to back this up with the corollary, “the only good [suspect] is a dead [suspect].” I remember in the early or mid-90’s there was a big push for non-lethal weapons for police departments and the military, but this seemed to stop with tasers and pepper spray. Just think of the difference it would have made if Officer Wilson had been able to neutralize Michael Brown without killing him. We would never have heard of either of them. Let’s put some resources into this so that police officers can “set phasers on stun.”

    Third, and closely related to the second, is that many police officers seem to have little understanding of the Bill of Rights (despite the fact that they are all taught about them), or maybe they have no respect for it. For evidence of this, I point to the many incidences where they object to being videotaped by people while in the course of their duties and instances where they raid homes on behalf of CPS without a warrant (courts have affirmed that there is no CPS exemption for unlawful search). I’ve been in forum and other discussions where police officers (in the name of security) assume the ability to act in any way they want to bring the “bad guys” to “justice.” This further compounds the PR problem I mentioned above, as well.

    In no way am I trying to defend the actions of criminals or demonize all police officers or departments. But police officers and departments can do a lot of things to improve their public image, and they don’t seem very interested in doing them. They can start by acting as pubic servants and protecting rather than infringing on our rights.

    • Thank you for your comments Mr. Erickson. As always, you raise some interesting points.

      I particularly like your observations about perception. We harbor perceptions of others, but we also harbor perceptions of ourselves. Some people may view police officers in a negative light. However, we must recognize that some individuals living in challenging urban settings may perceive themselves in a negative light as well.

      The reason I emphasized education in the article is because it offers the greatest opportunity to improve the urban environment by changing perceptions. Programs such as Reality Changers in San Diego have dramatically proven that if we can change perceptions, we can change realities.

      That particular program takes disadvantaged and extremely high-risk youths and introduces them to a different perception; one that says they can academically succeed and thus aspire to greater outcomes. The record of Reality Changers is extraordinary at taking hardened youths with a perceived future of criminal activity and/or an early death and changing that perception of one involving academic and socio-economic success. As a result, these students go to prestigious colleges on scholarships rather than to jail in a police cruiser or the morgue on a slab. I cannot understand why we can find money to fund State dinners, foreign countries’ military needs, and even body-cams for the police, but we cannot fund programs like Reality Changers for national deployment or provide competitive school environments in all neighborhoods.

      As you have implied, education would also benefit the police and the community. A heightened level of understanding and respect would benefit both sides. Perhaps community watch programs that integrate residents into law enforcement environments would help change the perceptions of both sides. It certainly is worth exploring.

      I also like your mention of pursuing advancements in non-lethal methods of controlling assailants, etc. While I am not against the body-cams that have been suggested, it should be noted that body-cams only provide a value after-the-fact (other than perhaps a minor “deterrent” impact they may have on the decision-making of the individual wearing one). In the case of Michael Brown, a body-cam may have helped determine whether the shooting was justified. However, the victim of the shooting is dead either way.

      The use of a non-lethal method gives the justice system a chance to function properly. In the case of Michael Brown, he would have been alive to testify so both sides of the altercation could have been heard. It still would be a matter of assessing the credibility of the witnesses and comparing their testimony to the physical and circumstantial evidence that was available. He very well may have been criminally prosecuted had he survived, but that would seem to be a preferable option to death. Your suggestion would have provided that option.

      Thank you again for your comments and suggestions. I hope others will respond to them.

  • This is a very thought provoking read. Thank you.

  • aloha597

    Each of us should also remember that George Mason’s Virginia Declaration of Rights is the source of the 2nd Amendment.