What Went Wrong in Ferguson: a Lawyer’s Perspective

Something went wrong with the legal system in Ferguson. Most of the frustration does not seem to be directed at the grand jury itself; those 12 people had to make a tough call when confronted with a lot of conflicting evidence. Instead, many people’s anger is directed at the legal system itself. “Until we have a serious legal system conversation, [things like this are] going to keep on happening,” said Kobe Bryant. “Reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution,” said Jeffrey Toobin.

There is a widespread belief that the lack of an indictment of Darren Wilson is not an isolated issue. Many believe an underlying flaw exists in the legal system, but it is difficult to pinpoint. Reggie Bush of the Detroit Lions expressed this sentiment:

Just watching last night, and it wasn’t so much of the police officer not being indicted but just something about how it was handled from beginning to end. Just something seemed flawed about the system and about the way that situation was handled. I don’t know all the facts of what happened during when Michael Brown was killed, but I just know that a young man lost his life. Was shot how many times? Six? Ten times? Ten times. That’s a little excessive.

So it goes back to the way the situation was handled, from there to the grand jury. It just seems like … it just turned my stomach. … How does this keep happening, because it seems like history is just repeating itself, you know. Every year, once a year, something like this. So, I guess, when is it going to change? When are we going to see change? When are people going to start being held accountable? When are we going to … it’s just terrible that this keeps happening.

So what, exactly, is the flaw in the system? Local prosecutors are the wrong people to prosecute police officers accused of crimes.

We have an adversarial legal system for good reason. In a criminal case, the prosecutor advocates for the victim and presents the strongest possible case in favor of a conviction. The defense attorney, of course, presents the strongest possible case for the accused. That way, the jury hears the best possible arguments on both sides and should be able to reach a just result.

In theory, a prosecutor will present the strongest possible case for indictment to a grand jury. The prosecutor is not supposed to be unbiased. The prosecutor is supposed to advocate for the victim and attempt to convince the grand jury to indict the defendant. The defendant will later have a full and fair opportunity to present evidence to the contrary at trial.

But that’s not what happened in Ferguson. The prosecution didn’t really advocate for the victim, Michael Brown. Instead, the prosecution presented a “neutral” case, by giving as much evidence as possible to the grand jury. But nobody is ever really neutral. Everyone has some bias, no matter how small, in a situation like the one in Ferguson. That’s the benefit of having an adversarial system in the first place: we give both sides a lawyer and tell the lawyers not to be neutral.

When a prosecutor tries to present a “neutral” case to a grand jury, the adversarial system breaks down, and that is especially bad when the defendant is a police officer. County prosecutors and police officers work very closely with each other. They are both law enforcement officials. They’re on the same team. If Ndamukong Suh injures Aaron Rodgers, and a panel has to decide whether Suh deserves a suspension, would Jim Caldwell, the coach of the Lions, be a good person to present all of the evidence to the panel? Of course not; he and Suh play for the same team.

But that is what happens when prosecutors present “neutral” cases to grand juries involving defendant police officers. Perhaps that’s why allegations of police misconduct rarely result in charges, even though grand juries indict a very large percentage of defendants over all.

Victims of crimes need legal advocates. It is apparent that county prosecutors are not very good at serving as those advocates when police officers are the defendants. So, somebody else should run these prosecutions. Perhaps the job should go to special prosecutors appointed by governors. Maybe even allowing the families of the victims to appoint the prosecutor in cases like this one would make more sense.

We just cannot continue to leave these cases in the hands of county prosecutors. Even if you believe that Darren Wilson committed no crime, you have to acknowledge that there are larger issues at stake here. Even the appearance of impropriety or bias on behalf of a prosecutor can lead to distrust and “distrust of law enforcement presents a grave danger to the civic fabric of the United States.” Prosecutor Bob McCulloch should never have had the option of handling this case himself. Because black lives matter. And slain black boys and men need legal advocates, especially when police officers do the shooting.

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