The Ferguson Grand Jury

I hit the backspace several times on this post. Part fear. Part outrage. Part loss of words. What to say? How to say it? Where to begin? How not to offend? I wrestled with it. It was a Jacob-like experience in so many ways—a limp-filled identity crisis hoping to come off as more Martin than Malcolm. I sat in front of the television last night, my glowing iPad screen illuminating my despondent face.  I sat in community with others, waiting to hear the grand jury’s decision in the Darren Wilson case. Would the grand jury indict Darren Wilson? How would the Ferguson community respond? Would they at least send the case to trial?

I was slightly hopeful. As a former prosecutor, I struggled to remember if I’d ever had a grand jury not indict a person for a crime. In most states the grand jury is a mere formality. Since the threshold is so low—probable cause—and prosecutors conduct the proceedings without defense counsel present, it’s very rare that grand juries fail to return an indictment. For the record, the Ferguson grand jury considered various forms of murder, ranging from first-degree murder to involuntary manslaughter. Each has varying degrees of intent, with involuntary manslaughter having the lowest standard.

With that knowledge, I was hopeful that Robert McCulloch, the Ferguson prosecutor, would treat Darren Wilson like he would treat any other defendant—in an adversarial way. From the time he took the podium last night, my hope began to wane. That hope gave way to fear. McCulloch talked negatively about witnesses, the media, and anyone not named Darren Wilson. I had one thought. Wait, is this a defense attorney in a prosecutor’s body? I’ve never seen a prosecutor discredit eyewitnesses like this in my life. Then I remembered Jim Crow.

Jim Crow

PBS describes its riveting documentary, The Rise and Fall of Jim Crow, with these opening words: Jim Crow was not a person, yet affected the lives of millions of people…Jim Crow came to personify the system of government-sanctioned racial oppression…in the United States. A system. As Thabiti Anyabwile notes, we’d be remiss to proclaim that “the system worked” without really assessing and strengthening that system.

We did the same thing with Jim Crow’s system. That system “worked” too. Jim Crow laws systematized racism. Enacted after the Reconstruction Period in the antebellum South, Jim Crow laws mandated segregated public schools, public places, and public transportation. The laws also had an adverse impact on voting rights for African Americans.

As early as 1892, a black man, Homer Plessy, refused to buy into the Jim Crow narrative and took a seat on “whites only” train in New Orleans. This planned act of civil disobedience led to the infamous Plessy vs. Ferguson ruling, a Supreme Court decision that found “separate but equal” laws fair and that they violated no laws.

Ironically, yesterday’s grand jury verdict was another vs. Ferguson decision. But it wasn’t Darren Wilson. It was Mike Brown vs. Ferguson. The very city Brown lived in, the very city that was to serve him, turned on him. In Plessy, the government-sanctioned oppression was overt, in Mike Brown’s case, it was subtle.  Prosecutors are tasked with the duty to pursue justice. They are also asked to advocate for victims of crimes. After hearing the prosecutor speak yesterday, who was the victim here? Mike Brown? Darren Wilson? The man who lost his life or the man who took the life of another—mind you, taking the life of another is an integral part of the definition of the crime before the grand jury? And here I thought Jim Crow’s system was dead.

The Walking Dead

Here’s the question that looms large in my heart: How does this narrative impact young, black men?  Do they feel like anyone values their life? Especially if a grand jury can’t at least send a case to trial when there’s disputed evidence in a shooting that occurred in broad daylight.

AMC has a popular series called The Walking DeadIt’s an apocalyptic, zombie-laden show that tracks the lives of a group of humans trying to figure out life after—well—life. The show’s characters often use the term, walkers, to describe the zombies—thus the name of the show. Walkers—dead zombies, walking around mindlessly after losing their lives.

We celebrate the eradication of Jim Crow laws. I’m a lawyer who boasts about my alma mater leading the way in the Brown vs. Board of Education litigation in 1954. The passage of the Civil Rights Act in 1964 further advanced the cause of desegregation. Let’s be real though. We’re still trying to figure out life after—well—life. Jim Crow is a walker. He may have lost his life, but he’s still a threat.  He bites. He claws. He snarls. He waits for the opportunity to feast at racism’s roundtable. And we let him. And if we aren’t careful we can buy into the rhetoric. The system works. Don’t disrupt the system. 

The truth is that most people who champion the system haven’t worked in the system they champion.  During my brief stint as a prosecutor, I saw the system work. And I saw the system WORK. I hope you see the distinction there. Black men are still incarcerated at a higher rate than any other ethnic group. They can tell you about the system—a system that gives them little chance at being productive members of society after serving time. They’re “bit”. They’re refused job opportunities. They’re labeled.

That’s the underlying issue here. This is bigger than Darren Wilson. This is bigger than Mike Brown. This is about thinking through real solutions to revamp a system that’s wrecked havoc on a community that has yet to recover from years of systemic racism. That’s where my heart is right now. And I pray that’s where others are too. You don’t have to agree with me. But, as a fellow human being created in God’s image, at least do the one thing we’re all inept at doing, myself included—listen.