I have sat relatively quiet and watched the events from August 9, 2014, forward.  I have offered prayers to the Brown family and support to their team.  I have been frustrated by the lack of leadership and response by those in charge on both sides.  Curiosity fuels speculation and speculation fuels contempt.  As such, Ferguson, Missouri has become a civil rights battleground- figuratively and literally.  Conclusions have been drawn before all of the facts are known.  Worse yet, the improperly addressed outrage has fueled so much division.

We are on the verge of a decision and I hope it will be met with peace.   I hope those in charge will take a moment to urge those disenfranchised to continue to fight, vote, pray and serve to make change happen.  Despite Trayvon, Jordan and Mike, too many failed to show up at the polls in November.  Too many are letting apathy excuse jury service.  Civil rights and justice start with the face in the mirror.

Two sides to every story?

What is known?  18-year-old Michael Brown, Jr., was shot and killed by police officer Darren Wilson.

What is unknown?  Much of everything else.  A teenager is dead as a result of a judgment call that looks all too familiar and tragic.  What happened in the moments leading up to the fatal shots?  Why did Mike Brown have to die?  My brothers and sisters have seen it too many times.  They “know” the story, but only the Grand Jury “knows” the story.  Right?

While Jordan Davis was still being a kid and attending high school at Wolfson and before Ron Davis, Lucia McBath and I ever met, I sat down to write a blog about a kid who had just been killed named Trayvon Martin.  Living only a hundred miles or so from Sanford, reports were a little more common locally than nationally at the time.  As a lawyer, I took both sides- first Trayvon Martin’s side and then George Zimmerman’s side.  Who knew then I would come to (accidentally) sit next to Zimmerman’s brother at a hearing and ultimately become friends and stalwart supporters of the Martin family and their counsel?  Who knew I’d come to have to threaten suit against Zimmerman myself?

Back then, I ultimately decided that the laws (and the bravado these laws empower) caused George Zimmerman to get out of his truck and commit a very wrongful and criminal act.  I didn’t label it manslaughter or murder, but it was one of the two.  A few hundred people read my blog and that was that.

I debated doing the same thing for Mike Brown- to sit down and analyze the situation, but at that time the child had not yet been buried, the evidence had not yet been publicly released and the story of that particular night had not yet been fully told.  Will we ever know?

It doesn’t mean I don’t recognize the tragic loss of life or stand shocked and depressed by what happened.  It just means that I want more information.  I have faith in the process.  We will see if I still have faith in a couple more hours when the announcement is made.

A grand jury and a ham sandwich

Grand juries were established by America’s English ancestry in the 1100’s as a check and balance to the increasing power of the Church and to prevent against oppressive prosecutions.  In 1215, the role was expanded by the Magna Carta as a shield against the power of the King.  The use isn’t required in state crimes, although most states use them, especially in certain “charged” circumstances where a prosecutor doesn’t want to put himself (or herself) on an island in the digital media age.

As many of the nation’s most notable cases occur in Florida, let me use its use of the grand jury as an example.  A grand jury is not required unless the charge is murder in the first degree – premeditated murder.  As such, George Zimmerman was not indicted by a grand jury.  Angela Corey, as special prosecutor, filed charges of second degree murder on her own.  On the other hand, Casey Anthony was indicted, as was Michael Dunn for the killing of Jordan Davis.  Dunn’s lawyer said over and over “a grand jury will indict a ham sandwich.” He borrowed this expression from legal antiquity, as it began being uttered by criminal defense lawyers long ago and was immortalized in the Tom Wolfe novel, Bonfire of the Vanities in 1987.

With that as a basis, the next step, legally, is a determination by a grand jury of whether Officer Wilson committed a crime.  Not surprisingly, this prosecutor is not going to unilaterally decide to charge officer Darren Wilson without it.  People avoid controversy, especially politicians and St. Louis County Prosecutor Robert McCulloch is no exception.  Some have speculated (including McCulloch) that it could take until October for the grand jury to hear all of the evidence related to the Michael Brown shooting.  This panel of citizens with decide if Officer Wilson will face charges.  It is now almost December and that decision is going to be released in moments.

In St. Louis County a grand jury typically serves for three or four months.  This panel’s session was not set to expire until September, but their term will not end until the conclusion of a case- so they finish today.  A grand jury’s job is to decide if a person should be charged with a crime.  In this case, Officer Wilson will have no right to confront witnesses.  The grand jury only has to decide based on one side of that story whether Officer Wilson should face further criminal proceedings.

The standard the grand jury uses is not “beyond a reasonable doubt,” which is the standard of determination for a judgment, verdict and conviction.  It must determine whether there is a preponderance of evidence (more likely than not) that Officer Wilson committed a crime under Missouri law that should cause him to be indicted and face a trial by a jury of citizens from the county.

Race and America in 2014

I have seen the question asked, “why are white on black crimes more newsworthy than other crimes?”  The answer to that question is complicated, is tied to the inhumane decisions of this nation’s forefathers and will not soon be resolved.

Post slavery, Jim Crow laws were laws enacted between 1876 and 1965 to address racial segregation at the state and local level.  The separation of whites and blacks often led to inferior conditions and treatment for African Americans.  African Americans were imprisoned at an alarming and unequal rate, where they would be returned to working in poor conditions for unpaid labor.

With as much celebration and civil rights’ successes as America has had since then, including the election of Barack Obama, America still fails to be a country of equality.  Yes, an African American can achieve the highest office in the land, but most still face challenges of everyday prejudice and stereotyping that most in the country would rather ignore.

Take, “The Talk,” for example.  When I reference, “The Talk,” I, as a white parent, dread, my white circles and I are mostly on the same page about what that means.  It means the awkward talk about sex and procreation.

When my black brothers and sisters have to give, “The Talk,” it is very different.  It is about survival, how to act when (not if) you are approached by a white officer or other authority figure and about the examples of Trayvon Martin, Jordan Davis and, now, Michael Brown.

That, my friends, says it all.  We are not truly equal until we are all equally worried about making life and not the taking of life. The facts in this incident are all too common in black America.  And if you look deeper, it is an American problem.  Since 1999, Florida police have shot over 600 people. In every instance, the police officer’s actions were deemed justifiable homicide.  That’s just wrong.  We are all in trouble, but the predominant color of those 600 people – black.

Riots and Race

After a jury acquitted four Los Angeles Police Department officers of assault and use of excessive force against Rodney King, the city of Los Angeles was rioted.  Statistics show the LA riots were the largest riots seen in the United States since the 1960s.  Estimates of property damages topped one billion dollars.  One of the hardest hit areas- Koreatown.

Art imitating life or life imitating art, this is the same thing that happened fictionally in Spike Lee’s Do the Right Thing, when an Asian-American business owner was forced to defend his store from rioters.

Asian-Americans own a number of the stores lining West Florissant Avenue, where more than 20 businesses have suffered damage in Ferguson.

I bring this up just so we don’t get caught up that racism is just black versus white or white versus black.  We all should be colorblind, but even those rioting rioted with some degree of racial bias.  It is shameful and hypocritical.

What will happen tonight?

I have no idea.  And I am not into speculation.  I’ pray we see the grand jury hold it over to let a jury decide.  A life was taken and the facts need to be judged fairly, openly and honestly.

The grand jury consists of six white men, three white women, two black women and one black man.  Nine votes are needed to indict.  I don’t believe that it will be 9-3 along racial lines to find no probable cause as some believe.  As we saw in the Michael Dunn trial, jurors take their job seriously and we know evidence has been presented on BOTH sides, including witnesses who saw the subject encounter.

 More importantly, this isn’t the “last stand” for race relations is America.  Mike Brown is one of those cases the media has used to fuel controversy and racial strife.  Why?  Because fear and controversy sell.  People are killed by unjustified force every week in this country and aren’t reported.  Their families die without the attention.  Mike’s life is a tragic loss.  However, I hope those who fight for Mike will fight for those who do not have the cameras on them.  Keep fighting.  Keep voting.  Keep showing up for jury duty.  Keep praying for America and not seek to destroy it.

As Abraham Lincoln said, “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”  We cannot let a grand jury decision further destroy progress.

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