Contours of prejudice

The Ferguson episode shows how nothing has changed for the African-American community since Abraham Lincoln signed the emancipation proclamation into law in 1863

Updated - November 28, 2014 01:32 pm IST

Published - November 28, 2014 12:40 am IST

Police officers confront protesters Tuesday, Nov. 25, 2014, in Ferguson, Mo. Missouri's governor ordered hundreds more state militia into Ferguson on Tuesday, after a night of protests and rioting over a grand jury's decision not to indict police officer Darren Wilson in the fatal shooting of Michael Brown, a case that has inflamed racial tensions in the U.S. (AP Photo/David Goldman)

Police officers confront protesters Tuesday, Nov. 25, 2014, in Ferguson, Mo. Missouri's governor ordered hundreds more state militia into Ferguson on Tuesday, after a night of protests and rioting over a grand jury's decision not to indict police officer Darren Wilson in the fatal shooting of Michael Brown, a case that has inflamed racial tensions in the U.S. (AP Photo/David Goldman)

When injustice becomes law, resistance becomes duty — Thomas Jefferson

Each year incidents of violence against African-Americans sear the national conscience in the U.S.; yet in most cases there is little accountability for the crime, fragile hope for a fair review within the judicial system and an infinitesimal chance that justice will be served.

When an unarmed 18-year-old African-American Michael Brown was shot no fewer than six times by a white police officer Darren Wilson on August 9 on the streets of Ferguson, Missouri, his death was a poignant reminder that nothing fundamental has changed for this community in the 151 years since Abraham Lincoln signed the emancipation proclamation into law.

When Missouri Governor Jay Nixon called out 2,200 members of the National Guard and declared an emergency in his state ahead of a ruling in the case this month, it was an eloquent statement on the atmosphere of suspicion and repression that has engulfed parts of the U.S.

America’s intractable “race problem,” which has shown no sign of withering under the nation’s first-ever African-American President, Barack Obama, is rooted in multidimensional prejudice, which taints not only the various institutions of law enforcement but also seeps through broader socio-cultural mores.

Brown’s case exemplifies all that is wrong with this state of hate. In the immediate aftermath of his killing, peaceful protesters in Ferguson, comprising African-Americans, whites, and other ethnicities, were greeted with a fierce crackdown by police armed with military-grade weapons.

Despite President Obama’s appeal for calm, tensions escalated as the police began strong-arming and arresting protesters and mediapersons in Ferguson. Already bitter from experiencing police intimidation and the use of tear gas against them, protestors and those seeking justice for Brown had to wait for more than three months for his legal case to make its way through the justice system.

Grand jury’s verdict On November 24, a grand jury effectively exonerated Mr. Wilson of any wrongdoing by refusing to indict him for the shooting and thus blocking the case from proceeding to a trial jury. The very use of a grand jury in such a sensitive case begs interrogation.

Grand juries in the U.S. are in some senses an anachronism of medieval English law, wherein a coterie of “informed citizens” would aid the king and his administration in sifting through rumours and common knowledge about an alleged crime, before a formal verdict was reached and punishment meted out.

While the functioning of modern-day grand juries in this country has some similarities to its transatlantic antecedent, U.S. law does not permit criminal prosecutions to be brought by private individuals for the most part, unlike in medieval England, and grand juries serve in an environment of prosecutorial guidance or discretion.

This means that in a majority of cases the public prosecutor calls up a grand jury when he is actively seeking to prosecute, and once he does so, the prosecutor has a free hand to present his side of the arguments and urge the grand jury to produce an indictment so long as they find probable cause.

In a case of relevance to India the indictment and re-indictment of Devyani Khobragade, former Indian Deputy Consul General who was arrested in New York in December 2013 on visa fraud charges, was by a grand jury which, upon receiving arguments and evidence from U.S. Attorney Preet Bharara, found probable cause in the prosecutor’s case.

It is in this context that a former judge famously said that prosecutors could persuade a grand jury to “indict a ham sandwich,” a likely reflection of official figures suggesting that of the 1,62,000 federal cases prosecuted by U.S. attorneys in 2010, all but 11 resulted in an indictment by the grand jury.

What went wrong here?

One “catch” with the mechanism of grand juries, and a reason why incensed protestors in Ferguson and across the nation have taken to the streets, is that grand juries do not hear the full extent of evidence that trial jurors would, and neither is there an established precedent for cross-examination.

While it may be true that in the Darren Wilson case the 12 members of the grand jury heard 70 hours of testimony, the hearings were held in secret and even the public release of reams of evidence presented to the grand jury was not tantamount to a public trial.

Racial composition The second, disturbing aspect of the grand jury was its racial composition — of the 12 jurors “selected at random from a fair cross-section of the citizens,” according to Missouri law, 75 per cent were white. Although St. Louis County’s overall population is 70 per cent white, nearly two-thirds of Ferguson’s residents are African-American.

Whatever the intentions of Mr. McCulloch in taking the case before a grand jury in this manner, even if it was to create a sense of public legitimacy or deflect blame away from himself for the outcome, his decision to not exercise prosecutorial discretion and allow a fuller examination of evidence and testimony is one more nail in the coffin of fair trials for a much-trampled community.

If the country’s juridical proceedings can thus be manipulated to undercut minority communities seeking justice, then a quiet undercurrent of racist stereotyping in the wider society perpetuates the notion that these communities are legitimate, even deserving, targets of malign official power.

Some of the stereotypes that haunt African-Americans can be gleaned from Mr. Wilson’s testimony, in which he said that Brown’s face looked “like a demon,” and that while the two scuffled in the officer’s car Mr. Wilson felt “like a five-year-old holding onto Hulk Hogan.”

Finally the Ferguson episode highlights a devastating, constitutionally protected, disease of the U.S. — gun proliferation, and the use of deadly force by law enforcement, particularly in incidents involving minorities.

In this regard, it carries echoes of the racially charged 2012 killing of Trayvon Martin (17) by an abuse-hurling George Zimmerman, the gun-toting “neighbourhood watch” officer who, similar to Mr. Wilson, went on to get acquitted by a jury on the charges of second-degree murder and manslaughter.

That episode appeared to test the practised neutrality of Mr. Obama who said at the time, “If I had a son, he would look like Trayvon.” You may not have a son, Mr. President, but the nation is your ward, and you have failed to speak up for core values that you’d want all Americans to have.

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