First published on TeleSur English, December 5, 2014. Note from author (December 6, 10 AM, CST): This essay was written before news came out of the decision of a Staten Island Grand Jury not to indict the white New York City Police officer who killed the Black man Eric Garner with an illegal chokehold last July 17th. The Staten Island verdict was more surprising to many than the St. Louis County verdict because there exists in the Garner-NYPD case a graphic video of the killing – a video that has gone viral on television and the Internet. Still, Grand Juries and prosecutors in the US almost always side with the police in these kinds of cases, which are terribly common: a Black person is killed by a(an almost always white) white police officer, security guard (as in the Trayvon Martin case), or self-appointed vigilante (though almost always a police officer) in the US on average once every 28 hours.
“A Nation Built on the Rule of Law”
In press conference remarks given after St. Louis County prosecutor Frank McCulloch announced last week that white police officer Darren Wilson would not be indicted for killing the 18-year-old Black man Michael Brown in Ferguson, Missouri last August, U.S. President Barack Obama called for calm. “First and foremost,” Obama said, “we are a nation built on the rule of law. And so we need to accept that this decision was the grand jury’s to make.”
It was an interesting, deeply conservative comment. The United States (US) was built among other things on Black chattel slavery, which was thoroughly legal in the United States until the Civil War – and then significantly restored in all but name for many years. Formal racial segregation carried the full force of the law in the U.S. South through the middle 1960s, as did racial apartheid in South Africa through the early 1990s. The Holocaust was technically “legal” in Nazi Germany.
How about “the rule of law” today? The former Constitutional Law professor Obama might want to have a look at Matt Taibbi’s latest book The Divide: American Injustice in the Age of the Wealth Gap. Taibbi exposes the great class-race rift in U.S. “criminal justice,” bringing to light “the fun-house-mirror worlds of the untouchably wealthy and the criminalized poor.” On one hand, there’s the elite financial looters on Wall Street. All they did was destroy jobs, households, and lives on a massive scale by crashing the national and global economy through selfish, technically criminal (fraudulent) arrogance and deception. They’ve gone almost completely scot-free in the nation’s money-drenched legal and political rackets.
On the other hand, there’s the millions of poor folks who lack even a hint of “the 1 Percent’s” legal and political resources. Taibbi journeys into “the front lines of the immigrant dragnet; into the newly punitive welfare system which treats its beneficiaries as thieves; and deep inside the stop-and-frisk world, where standing in front of your own home has become an arrestable offense.” Here people without means are punished with abandon, spending years and often lives behind bars for victimless crimes.
It’s all very consistent with an old working class slogan: “money talks, bullshit walks.” Respect for “the rule of law” is a very thin moral basis on which to preach obedience.
How did “the rule of law” distinguish itself in Mike Brown’s killing and “the decision [that] was the grand jury’s to make”? Police, prosecutors, and other authorities made a travesty of the case from the start and through the grand jury’s “no true bill” (no indictment) ruling last week. Brown’s body was left lying in the road for four hours – a highly provocative action. The medical examination was botched. The Ferguson police insolently released a video of Brown engaged in petty theft prior to his killing, a clear attempt to influence public opinion in their favor – this even as the cops still refused to release Wilson’s name and race. Protesters in Ferguson then faced over-the-top military-style and multi-jurisdictional police-state repression that captured headlines around the world, evoking criticism even from mainstream U.S. politicians and media.
Robert McCulloch: “An Unabashed Defender of the Police”
St. Louis County Prosecuting Attorney Robert McCulloch should have removed himself from the Darren Wilson case. His prior misconduct in a Grand Jury whitewash of the killing of two unarmed Black men (Earl Murray and Ronald Beasley) by two white police officers in 2000 should have disqualified him from presiding over the Wilson case. As the New York Daily News reported the day after McCulloch coldly and smugly announced the “no true bill” judgment, the prosecutor had long, close, and familial ties to the police and a problematic history on race and police shootings. By reporter Rich Shapiro’s account:
“Bob McCulloch grew up the son of a cop, in a family full of cops, dreaming that someday he would become a cop himself. ‘I couldn’t become a policeman, so being county prosecutor is the next best thing,’ McCulloch once told the St. Louis Post-Dispatch.”
“He’s been the St. Louis County prosecutor since 1991 and his deep ties with police have rankled area residents for years. Long before he drew scrutiny in the Michael Brown investigation, McCulloch had come under fire for his handling of other police shootings.”
“‘Whether truly justified or not, there’s a perception that he just never will prosecute a police officer,’ said Steven Ryals, a veteran civil rights attorney who lived in Ferguson for 45 years.”
“Twenty-five days shy of his 13th birthday, McCulloch’s father was shot and killed in a gun battle with a kidnapper in 1964. If it weren’t for a cruel twist of fate, McCulloch would have likely followed in the family tradition. Besides his father, his brother, nephew and cousin all served on the St. Louis police force. But in his senior year of high school, McCulloch lost his right leg to cancer. No longer able to become a cop, he made it his mission to land a job as a prosecutor.”
“McCulloch’s reputation as an unabashed defender of the police took root in 2001, 10 years after the Democrat took office. That year, a pair of undercover cops shot and killed two men inside a car in a Jack in the Box parking lot in a hail of 21 bullets. A federal probe, while ruling the shootings were justified, found that the men were unarmed and their car had not moved forward when the officers opened fire. McCulloch declined to prosecute the cops. He further inflamed tensions by referring to the suspects Earl Murray and Ronald Beasley as ‘bums.’”
“‘Mr. McCulloch has run the office of the prosecuting attorney with an iron glove and has made it quite clear that men in blue will be protected at all costs,’ Randall Cahill, who represented the victims, told the Daily News.” (emphasis added)
No wonder 70,000 Missouri residents signed a petition calling for McCulloch’s recusal from the investigation of the Mike Brown shooting.
“I [Don’t] Want You to Get Confused”
Fears that McCulloch and his office would prove biased on behalf of Officer Wilson were born out. Legal experts were taken aback by his handling of the Wilson case. Instead of presenting the jury with only evidence supporting the state’s case, the typical prosecutorial practice, McCulloch permitted Wilson to defend himself and offered witness testimony that conflicted with the case for indictment. Prosecutors who are serious about securing an indictment do not give Grand Juries “all the evidence,” legally required only for a trial, not an indictment. In the Wilson case, however, McCulloch broke with standard practice, strongly suggesting a lack of interest on his part in going to trial.
To make matters worse, one of McCulloch’s Assistant Prosecutors gave the grand jurors a copy of an outdated and invalidated Missouri lawstating that police officers had the right to shoot any suspect fleeing arrest. The law was ruled unconstitutional by the U.S. Supreme Courtthree decades ago. Still, the Grand Jury listened to evidence with the obsolete and unconstitutional statute in their minds for more than two months. Just one week before the jury was to rule, a local news outlet discovered the error or (more likely) deception. The Assistant Prosecutor, Kathi Alizadeh, made a badly muddled attempt to correct her “mistake.” On November 21, 2014, a mere three days before the “no true bill” verdict, she inarticulately instructed the Grand Jury as follows:
“Previously in the very beginning of this process I printed out a statute for you that was, the statute in Missouri for the use of force to affect an arrest. So if you all want to get those out. What we have discovered and we have been going along with this, doing our research, is that the statute in the state of Missouri does not comply with the case law. This doesn’t sound probably unfamiliar with you that the law is codified in the written form in the books and they’re called statutes, but courts interpret those statutes. And so the statute for the use of force to affect an arrest in the state of Missouri does not comply with Missouri supreme, I’m sorry, United States Supreme Court cases. So the statue I gave you, if you want to fold that in half just so that you know don’t necessarily rely on that because there is a portion of that that doesn’t comply with the law.”
Alizadeh handed the jurors a new document explaining the current and constitutional law regarding police officers’ use of deadly force. She said this document “does correctly state what the law is on when an officer can use force and when he can use deadly force in affecting an arrest, okay. I don’t want you to get confused and don’t rely on that copy or that print-out of the statute that I’ve given you a long time ago. It is not entirely incorrect or inaccurate, but there is something in it that’s not correct, ignore it totally.” Say what?
“We Don’t Want to Get Into a Law Class”
Seeking clarity, a Grand Jury member asked Alizadeh a simple and basic question: “The Supreme Court, federal court, overrides Missouri statutes?” The Assistant Prosecutor could (and should) have answered accurately with one word: “yes.” Instead, she opted for further confusion by saying this: “As far as you need to know, just don’t worry about that“(!) Another Assistant Prosecutor present, Ms. Whirley, chimed in supportively, saying “We don’t want to get into a law class.” The disingenuous and arrogant assumption behind these strange replies to the juror’s simple and essential question was that it would have unduly taxed the jurors’ minds to tell them that the unconstitutional Missouri law Alizadeh had passed out to them more than two months ago had been ruled unconstitutional by the Eighth Circuit Court of Appeals and the United States Supreme Court and that these federal court ruling overrode state laws.
Such prosecutorial misconduct – remarkably rife in the U.S. – makes a travesty out of “the rule of law.”
Exception to the Grand Jury Rule
But it’s hardly clear that the outcome would have been any different without Alizadeh’s “mistake.” As Ben Casselman notes on the blog FiveThirtyEight, “Grand juries nearly always decide to indict. Or at least, they nearly always do so in cases that don’t involve police officers.” Cases involving police shootings are a great exception to the rule that prosecutors generally get indictments from the Grand Juries they convene. Casselman suggests that prosecutorial bias may be a reason: “Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously.” That is the most likely explanation in this case, with the pro-police bias fueled more intensely than usual by McCulloch’s background.
Good (US of) Americans are supposed to be horrified at images of rioting and looting by the Ferguson protestors who rejected Obama’s call for calm. But is it really surprising that the president’s plea for respect for “the rule of law” would fall would fall on deaf ears when the U.S. criminal justice process in is so badly tilted in favor of money and the power- and privilege-serving authority of the nation’s ever more militarized police? Riots reflect the lack of recourse and opportunity under the prevailing order and a sense – all too accurate – that the game is rigged on behalf of the rich and powerful. Ferguson is hardly the first or last example.
Paul Street’s latest book is They Rule: The 1% v. Democracy (Paradigm, 2014).