Wednesday, November 26, 2014

Ferguson: The hammer and the nail



ON THE same day Michael Schwerner, James Chaney and Andrew Goodman were posthumously awarded the Presidential Medal of Freedom, the nation for which that medal stands took a giant lurch backward, into the era of feverishly fabricated, desperately rationalized darkness that made their sacrifice what it is today.

Darren Wilson, a white police officer for the city of Ferguson, Mo., was cleared late Monday of any and all charges for the August 9 killing of Michael Brown, Jr., by a grand jury manipulated by a prosecutor’s personal and political mission, and a governor’s own invertebrate inclinations. Despite numerous eyewitness reports that suggest Wilson’s actions may well have been a murder in everything but name, the Ferguson cop walked on charges of first and second-degree murder, voluntary and involuntary manslaughter.

Wilson now joins George Zimmerman, the slayer of Trayvon Martin, in that dim outback pariah zone of the American consciousness, a space inhabited by our national cyphers and trivia-question answers, people of rash action and weak judgment.

And the cynicism that ran through the legal process of a sad episode yielded something apparently inescapable: the continuing devaluation of African American lives. As former prosecutor Paul Butler told MSNBC, “it does seem as though an unarmed African American man or woman has no rights that a white cop is bound to respect.”

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We knew something heavy was coming when the drum roll started. Seven or eight minutes before St. Louis County Prosecutor Robert McCulloch went into a room at the Buzz Westfall Justice Center in Clayton, the county seat and 11 miles south of Ferguson, someone in the crowd outside — somebody with a nice sense of drama and American military tradition — began a prolonged drum roll, the kind before a ceremony, or an execution, maybe, in the era of the Civil War.

It may well have been a flourish before the summary execution of proper prosecutorial conduct. McCulloch launched into a bizarre 25-minute disquisition by turns rationalization and incident report, praisesong for the grand jurors and indictment of the media.

Some of the problem with McCulloch’s soliloquy wasn’t what he said, it was the way he said it. Mostly with his head down, buried in his prepared statement, McCulloch might as well have been reading from an actuarial table or documenting the fine points of an insurance policy. He made the obligatory acknowledgement to the Brown family of the pain and heartache of their son’s death, but it was pro forma. There was very little heart behind it.

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NOT NEAR as much heart as he put into his shots at the media. “The most significant challenge encountered in this investigation has been the 24-hour news cycle and its insatiable appetite for something, for anything to talk about, following closely behind with the non-stop rumors on social media,” McCulloch said, completely overlooking his role in giving the media, and everyone else, exactly that — in a number of targeted leaks of information intended to smear Michael Brown’s character and reputation.

From the beginning, McCulloch embarked on a strategy breathtaking for its manipulation of legal practice. McCulloch, with a generosity uncommon to prosecutors, decided to give the grand jurors all the available evidence in the Michael Brown case — to effectively flood the zone with evidence, both that consistent with what a prosecutor requires, and information commonly used at trial by a defense attorney.

A number of exhibits — Brown’s toxicology workup, an unrelated video of Brown minutes before the fatal encounter with Wilson — were introduced by McCulloch’s staff, in what amounted to character assassination by way of an unusually generous prosecutorial largesse.. The county prosecutor was doing the work of a defense attorney. Wilson’s defense attorney. Maybe at no other time in the history of American jurisprudence has a lawyer worked both sides of the street, as prosecutor and defense counsel, at the same time.

“This prosecutor bent over backwards to insure that there would not be charges filed,” said legal analyst Lisa Bloom on MSNBC. “He rigged the system to get the results he wanted.”

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Some of what McCulloch said Monday night (much of it already on the record), left open challenges by the Justice Department, which we can almost certainly expect as the closing statement of Eric Holder’s career as U.S. attorney general.

At one point Monday, McCullouch said: “A nearby tenant, during a video chat, inadvertently captured the final 10 shots on tape. There was a string of several shots, followed by a brief pause, following by another string of several shots.”

Transcript of the grand jury proceedings

Considering the low threshold for an indictment on a charge of voluntary manslaughter — probably the one and only charge Wilson was really facing — the question is, how could a sequence of several shots, followed by a brief pause, followed by another string of several shots not rise to the level of at least voluntary manslaughter?

Wilson’s pause in the slaughter — that break for reflection, for thinking — will almost certainly be an issue in any follow-on actions by the Justice Department, which, thanks to groups like CREDO and ColorOfChange, is being pressured to make a top priority in the sunset of Holder’s Justice Department career.

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THE EVENTS of Monday night throw shadow on the sunset of another political career: President Obama. Presiding over yet another teachable moment in the national history, Obama made an impromptu address to the country from the White House Briefing Room not long after McCulloch’s statement.

“First and foremost, we are a nation built on the rule of law,” the president said. “And so we need to accept that this decision was the grand jury’s to make. There are Americans who agree with it, and there are Americans who are deeply disappointed, even angry. It’s an understandable reaction. But I join Michael’s parents in asking anyone who protests this decision to do so peacefully.”



The president’s speech was perfectly necessary. But in some ways its timing, and television’s use of that timing, were perfectly awful. On MSNBC, and probably other networks, viewers were witness to an arresting real-life coincidence that split-screen technology made the most of.

On one side of the screen, Obama spoke with force and clarity about the need for calm in the wake of the Ferguson grand jury proceedings. On the other side of the screen — in a surreal, tragically ironic real-time juxtaposition, were images from the streets of Ferguson: tear gas aloft, police cruisers rocked by protesters, cops advancing.

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That juxtaposition — not before and after, but now and also-now, distilled everything of the national dynamic about race; it explained, like no words could, the schizoid comfort/discomfort zone we live in as a nation. How on racial issues we’ve gotten comfortable with a perverse balance of the anodyne and the anarchic.

The president got this himself, made it clear later in the speech that he understands how that split-screen applies to anywhere in the nation. Twenty-four hours later, you could juxtapose other related events from more than 100 different locations, across the country.

And the networks did just that, juxtaposing events in Oakland, Calif. (where protesters lay down on the highway in protest of the grand jury’s decision) and Chicago (where protesters hit the downtown streets in vast numbers).

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WHAT WENT down on Monday and Tuesday in Seattle (where protesters snarled traffic on the interstate and staged spot demonstrations on Capitol Hill) was much the same as what happened in New York City (where protesters filled Times Square, shut down three city bridges and splashed NYPD Commissioner Bill Bratton with red paint). You could split-screen Los Angeles with Salt Lake City. And Denver with Cleveland. And Milwaukee with Miami. And Albuquerque with Atlanta. And Dallas with Minneapolis.

“We need to recognize that this is not just an issue for Ferguson,” Obama said Monday. “This is an issue for America. We have made enormous progress in race relations over the course of the past several decades. I've witnessed that in my own life. And to deny that progress I think is to deny America’s capacity for change.

“But what is also true is that there are still problems and communities of color aren't just making these problems up. Separating that from this particular decision, there are issues in which the law too often feels as if it is being applied in discriminatory fashion. I don't think that's the norm. I don't think that's true for the majority of communities or the vast majority of law enforcement officials. But these are real issues. And we have to lift them up and not deny them or try to tamp them down. What we need to do is to understand them and figure out how do we make more progress. And that can be done.”

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MAYBE. We’ll know when we’re really making more of the progress that the president talked about. That’ll happen when it doesn’t take a tragedy or a travesty, or both, to have the conversations about race and its status as the third-rail issue of our time, and of all of our American time.

Speaking in Chicago on Tuesday, Obama issued the ritual call for calm and order to be restored in Ferguson, chastising the protesters who started the fires and torched the cars that burned through the night.

“[T]here are productive ways of responding and expressing those frustrations, and there are destructive ways of responding,” Obama said. “Burning buildings, torching cars, destroying property, putting people at risk -- that's destructive and there’s no excuse for it. Those are criminal acts, and people should be prosecuted if they engage in criminal acts.”

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The president thus made the expected appeal for things in Ferguson to get back to “normal.” In the short term, what he said makes sense. But that’s the problem with necessary, reflexive calls for order and calm after the destructions of Monday night. They’re short-term.

Such calls for a return to “normal” overlook or ignore what it is about “normal” that made such abnormal behavior possible — and in some minds, necessary — in the first place. If “normal” is the problem and “normal” never changes vis-à-vis police-minority relations, sooner or later we’re locked into a scenario of history repeating.

The Michael Brown case showed us how that gets started: The condition of his body, left on a city street for four hours in the heat of August.

The refusal of the former police chief to release Wilson’s name.

Gov. Jay Nixon’s unnecessary declaration of a state of emergency, an overreaction to what had been to that point peaceful protests.

The deeply cynical baiting of the crowd that gathered Monday to hear the grand jury proceedings. The postponement of that announcement until deep into the night. Days before Thanksgiving.

Disrespect piled on disrespect.

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THE FRACTIOUS history of police-minority relations is often conveniently framed in black and white, and with sadly good reason. It’s also been characterized in terms of citizens and the power structure, or the people and the government.

But as much as anything else — and I’ve observed this before — the Michael Brown/Darren Wilson case illustrates how much contemporary policing in America is a comparative construct of the hammer and the nail, with police self-identifying in the repressive power position of that construct. And acting accordingly.

Unless that changes, unless that fundamentally oppressive, antagonistic relationship changes, nothing else will. And the current rage subsides and things go back to “normal,” and we remember to forget. Until the moment it happens again. And we come back to Ferguson, somewhere else in America. And we come back again. And again and again, and again.

Image credits: SEASONS GREETINGS from Ferguson: Charlie Riedel/Associated Press. Wilson: St. Louis County Prosecutor's Office. McCulloch: Via Yahoo News. Michael Brown Jr.: The Michael Brown family. Color of Change logo: colorofchange.org. Obama split-screen: via MSNBC. Bratton splatter: @jeffrae (Twitter). Ferguson fires: @Jilltucker, @TreyYingst.

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