Awaiting the Grand Jury, Dread in Ferguson and America

By V. Gene Robinson, The Daily Beast

17 November 14

It sure appears that this grand jury has been run so as not to return an indictment. It will be hard to blame people if they’re angry.

here's not a lot of dread in my life. A few worries, to be sure, but not that cousin of depression and anxiety, dread. Oh, like everyone else I dread root canals, sitting in holiday traffic that delays a reunion with family, and waiting on the lab report from a biopsy. Dread is the feeling I get when something bad seems to be on the way, and I know that there's not a damn thing I can do about it.

These days, I find myself heavy with dread over what looks to be coming down the pike in Ferguson, Missouri, in the next few days, and I feel powerless to stop it. And if indeed, as I fear, the grand jury in St. Louis County decides not to indict Darren Wilson, the cop who shot unarmed Michael Brown, Jr. in Ferguson this summer, what will I, as a white man, do about it?

Much as they did immediately after the shooting of Mike Brown and the demonstrations that followed, local police appear to be preparing for war, rather than keeping the peace. We saw how such provocative actions only inflamed passions and escalated the unrest. The use of military-style protective gear and combat vehicles purchased from the Pentagon, along with embattled attitudes that are appropriate to real war, if employed, will once again bring increased conflict, not peace in Ferguson. Its citizens will feel assaulted, not protected.

The grand jury process, managed by St. Louis County Prosecuting Attorney Robert McCulloch, has not inspired confidence. The point of a grand jury is quite simple, really: to determine if there is enough evidence pointing toward a crime having been committed to move forward with a trial. Its purpose is not to try the case, seek both sides of the argument, or weigh the relative merits of each. Its purpose is to answer one question: Is there enough evidence to warrant a trial?

Robert McCulloch’s job as Prosecuting Attorney is to make the case for an indictment and, having obtained an indictment, to proceed with a trial. He is, after all, the Prosecuting Attorney, whose job is to seek a prosecution of the case. Instead, as he has managed the grand jury process, he has gone far beyond what a prosecutor is supposed to do – the most egregious example of which is the appearance and testimony before the grand jury by the accused! This almost never happens, because the accused will have his day in court, and the grand jury hearing is not that day!

Allowing the accused to appear and tell his story, without the prosecuting attorney being present or able to cross-examine him, gives the grand jury a one-sided (the accused’s) view of what happened. It is not the grand jury’s place to hear that evidence/testimony, nor is it the grand jury’s job to try this case. Experts agree that the appearance of the accused before a grand jury is at best an effort to confuse the jury and distract them from their real task, and at its worst, an outright effort to dissuade the grand jury from bringing an indictment, and the resulting trial. It is an effort to overwhelm the grand jury with the complexity of the case, bolstered by sympathy for the accused, generated by his appearance and testimony before them, with no one present to call his account into question.

The parents of Michael Brown, Jr. and the citizens of Ferguson were right to question McCulloch’s ability and/or willingness to seek aggressively an indictment from the grand jury, given his long and acknowledged ties – both professional and personal – to the police force personnel of that city. The subsequent process used for this grand jury investigation confirms that those citizens had every right to be concerned and to demand that McCulloch recuse himself. And the tragedy is that if these grand jurors decide not to hand down an indictment of Wilson, no one will ever know how they were led to such a decision.

Let’s be clear: I am not saying that Wilson is guilty of a crime. Indeed, it is possible that the evidence points to aggressive acts on the part of Brown unknown to the public at this time. That would be determined in a court of law. The question is whether there will ever even be a trial. For Wilson to be excused from the scrutiny of a trial – transparent and held in the light of day for all the world to see – is to consign the judgment of his guilt or innocence to the grand jury back room, rather than to a public courtroom, where observation of the legal process is not only appropriate but helpful to the healing of a community.

If the grand jury decides not to hand down an indictment of Wilson, huge numbers of people will be legitimately outraged, and I will count myself among them. Only time will tell whether that outrage is expressed in peaceful, but angry, protests, or whether some will choose more violent ways to express their anger with a system that feels unjust. Probably, we will see lots of the former, and precious little of the latter – but you can be sure we will hear about the violence 24/7, with only a passing mention of the peaceful, angry protest, the right to which is guaranteed by the Constitution.

There are two Americas – one for white people, and one for everyone else. I believe that the future prosperity and leadership of America in the world is dependent on our bringing those two Americas closer to one another, so that “freedom and justice for all” actually means all. The process for the St. Louis County grand jury investigation, managed by Prosecuting Attorney McCulloch, is full of questionable practices, and wide open to legitimate charges of manipulation and bias. If no indictment is handed down, it will be taken by the African-American community – and by a lot of us white people – as confirmation of a less just America for people of color than for its white citizens.

If the outrage over no indictment is accompanied by violence, it will be the result of generations of injustice for people of color, which have festered over time and produced cynicism and profound anger in its victims. If there is blame for outbreaks of violence, it will be shared by the perpetrators and the white majority society alike. We’re all in this together. We will work together to stop this injustice, or it will destroy all of us. And may God have mercy on us in the days to come.