Bias in the system

DW: As a law professor specializing in racial issues were you surprised by the decision of the grand jury in Ferguson not to indict Darren Wilson for the shooting of Michael Brown?

Kami Chavis Simmons, law professor and director of the Criminal Justice Program at Wake Forest University: Unfortunately, I was not surprised about the verdict. And there are a number of reasons for that. First, these officer-involved shootings are notoriously difficult to prosecute. And the way the grand jury process unfolded in this case led me to believe early on that there was going to be a lot of information, a lot of conflicting evidence that would give the jurors reason to believe that there was no probable cause for an indictment which is the standard here. This is unusual because typically in the grand jury process the prosecutor - if he believes that they have probable cause - will present the best-case scenario.

David Harris, law professor at the University of Pittsburgh: I was not surprised and I'll explain why. Number one, it is very hard and there are extralegal burdens involved in charging and convicting a police officer in the American system. The police officer has a right to use even deadly force if there is proper and reasonable cause to carry out his duties. Because of this, a case against a police officer is never as straightforward as a case against a civilian.

Then there is a whole other layer and that is the way that the investigation of the grand jury was conducted. The grand jury has a long history in the United States which goes back to the colonial days and Britain. It is supposed to have two roles, one as a shield against government overreaching and the other as a sword of investigation. In practice in the United States in the modern era the grand jury is used almost exclusively to investigate and it is in every way the tool of the prosecutor. It is overseen in a nominal way by a judge, but the prosecutor runs the grand jury, tells it what to consider, suggests the right charges in the prosecutor's opinion, brings selected evidence in front of the grand jury to obtain those goals. It is rare indeed for a grand jury to go against what a prosecutor wants.

This is important, because what happened here in the Ferguson case was that the prosecutor departed from this very well known way of working with the grand jury. There were calls for the prosecutor to be removed from the case because his father, a police officer, had been killed long ago by a black man. He refused to step away and said he could do it fairly and what he then did was use a very different process for the grand jury.

Instead of taking control of it and recommending things, he simply dumped all of the evidence on the grand jury without much guidance. He let them hear contradictory witnesses and gave them the full range of choices on whether to charge or not without the usual procedures and guidance. Now this may have produced exactly the same result that it would have had the grand jury been used in the usual way.

But what people understood right away - and I think they were correct about this - was that the prosecutor had departed from the usual procedures and that made everyone suspicious right off the top that this was not going to be a fair process. And people still think now, even if they think the result might have been correct, that the process was not used in the same way in this case as it would have been in any other. So there is a strong perception of unfairness.

The other thing this unusual procedure did was frankly very cynical in my opinion. It was a way for the prosecutor to simply say in the end, 'it was the grand jury that did it, we didn't do it,' knowing I think that throwing all this evidence at the grand jury and not guiding them would probably result in no indictment. And I think that's what the prosecutor probably wanted in the first place. And here he does this in a way that gives him political cover.

From a legal standpoint, how would you rate the performance of the authorities in handling the case, i.e. law enforcement, politicians and prosecutors?

Simmons: The tendency is to second guess all of the local officials. I can't speak to that. But I do think there are a lot reasons for citizens to be concerned about a lack of legitimacy in the initial investigation. There were a lot of things that happened to cause the community there to lose trust. And then the way the grand jury process unfolded confirmed for many people this lack of trust in the process.

I was disappointed that the prosecutor missed a huge opportunity for leadership in this issue and to begin a healing. The statement he made began with a scathing critique of the media and the community. He did mention there were reasons for this underlying tension, but I really thought he could have been more measured in his statement because he knew that the world was watching and he knew that this was going to be a controversial decision. But let me also add that the violence that occurred in Ferguson is unacceptable and detracts from the real issue which is the relationship between the police and the community.

Harris: The prosecutor did not violate the law in what he did by varying the practice greatly. But within the law you can sometimes do things that are unusual enough that it will raise suspicions and perhaps change the outcome. And this was what this prosecutor did: His way of running the process leaves very substantial questions open.

As far as the rest of law enforcement, what we saw in Ferguson was a great tragedy. I do not and nobody could condone rioting, burning of businesses and buildings. But the biggest mistake that law enforcement made outside of simply the death of Michael Brown was that law enforcement did nothing in advance to build any relationships with that community.

If police want to rely on their community, to support them and frankly to understand what's going on on the ground they must have good relationships with the citizens that they serve. Good police departments know that these relationships are important. When you say relationships and policing, people think that sounds very soft. But actually it is the heart of how good policing is done. And in Ferguson - as in so many other communities - the police had just not bothered to build those kinds of relationships - in fact to the extent that there were relationships that were basically antagonistic. And because of that when that tragedy occurred, police in Ferguson had no idea what to do, who to call, how to settle things down.

Do the cases of Michael Brown and earlier of Trayvon Martin send a larger message about the state of the criminal justice system in the US?

Harris: Yes, they do. They have become symbols of the way that the criminal justice system interacts with and treats African-Americans and other people of color and minorities. It is an unfortunate reality that there are biases and instances of disproportionate and difficult enforcement in the American criminal justice system at different points, some during policing, some in the legal system and some in sentencing.

The problems are deeply rooted. But I would not say that the people in the justice system or the police are necessarily racist, certainly not all of them, even if a few of them are. But what we are dealing with are long-term, intractable ways that the system deals with primarily poor people and people of color. And we are stuck in these ways due to unconscious biases and other aspects of human thinking and it is going to take a long time to get passed them. For a black person every incident like this is not a single incident. It is part of a long history that goes back all the way to slavery in which state power and particularly police power have been used in what they consider the oppression of black people. So it does send a message that we - as so many other countries - do not have a perfect system. We are working on making it better, but we have some distance to go.

Simmons: Unfortunately, they do. The difference in this case is we have a police officer who shot Michael Brown. Officers responding to calls are under incredible pressure and they have to make split-second decisions. But they are the only people in our society that we entrust to use lethal force in carrying out their everyday duties. There is a great amount of responsibility that comes with that.

There was also the case of Eric Gardner who was placed in a chokehold in New York City by officers. The allegation was he was selling untaxed cigarettes. He died as a result of his contact with police officers. The thinking was to protect property - in the Trayvon Martin case the idea was people's homes were burglarized, in the Eric Gardner case it was untaxed cigarettes, and in this case Officer [Darren] Wilson responded to a call that Michael Brown had stolen some little cigars from a shop.

I think it does say a lot about the criminal justice system that we are willing to sacrifice the loss of life for in many cases very insignificant reasons. And it also highlights the long history of tensions between minority communities and police. These poor urban communities are policed in an entirely different manner than some upper-middle class areas. Some people will tell you that this is because there is more crime and that may be the case, but I think there needs to be more of an emphasis on partnering with the community to prevent crime rather than these heavy handed aggressive police tactics.