The Indictment

Anytime a legal issue significantly enters the non-legal eye -- whether we're talking about the health care law or the decision whether to indict Michael Brown -- most lawyers I know wince at least a little bit. When did 25 million people suddenly earn their J.D.s? There is a decided tension between three premises that seem to be somewhat widely shared amongst non-lawyers but are not universally compatible:

(1) Law is not simply an extension of our political or moral preferences; indeed, it is bad for legal decisionmakers to make decisions based on what they feel is "right" rather than what the law demands;

(2) Law is a technical subject requiring at least some specialized knowledge; while everyday citizens may be able to reason morally or politically as well as anyone else, one needs to know law specifically to reliably come to correct legal outcomes; and

(3) Non-lawyers can validly critique legal decisions as legal decisions (more than "if this is the law, then the law is unjust")

Yet even as I feel this twinge a little bit in the wake of the Michael Brown non-indictment, I feel it less than I do normally. In part, perhaps, this is because it was a grand jury decision -- grand jurors aren't lawyers either, after all. And moreover, it is correct that this case is a serious aberration from the norm whereby Grand Juries will "indict a ham sandwich." And even adjusting for the special case of police shootings -- which are almost never challenged in a criminal context at all -- there are some special reasons to be concerned here. I don't know if I'll go so far as to say the prosecutor threw the case, but from a lawyer's perspective let's just say that there were some tactical choices he made that were not exactly consistent with a zealous desire to have this case go to trial. There is a lingering suspicion that the prosecutor here really didn't want to prosecute but wanted to foist the blame off on someone else, so he presented his case before the grand jury in a way that made it far, far less likely to result in an indictment than the normal case.

What makes the non-indictment so upsetting -- even more so than, say, the George Zimmerman verdict -- is the message it seems to send about what is and isn't a plausible narrative in our society. Technically speaking, an non-indictment is not a finding an innocence -- a guilty person could nonetheless (validly) be non-indicted simply because the evidence we're able to access is insufficient to justify moving the case forward. Functionally speaking, a non-indictment decision suggests that the grand jury thought it was implausible that Darren Wilson was guilty. In a stylized but very real sense, what an indictment is is a decision about whether to continue a conversation forward -- whether or not the proposition "Darren Wilson is culpable in the murder of Michael Brown" is sufficiently plausible such that it is worth spending our time on. To answer that question "no" is revealing and worrying, and it should be. Whether or not we are sure to a "moral certainty" that Wilson is guilty, it seems difficult to be so confident at this stage that he is not guilty that we can justly neglect to look into it further.

But even as there is very justifiable and warranted outrage over the non-indictment of Darren Wilson, in some sense, there has been a very successful indictment in the sense I am talking about above. The belief in communities of color that the police are just another local gang, that they are not there to and cannot be relied upon to protect their children but actually are another source of threat to their children, is nothing new. And it is interesting to me that, as old as this sentiment is, right now we really do seem to be seeing some genuine national recognition of it -- recognition of the real and genuine vulnerability people of color feel; that they can be killed with impunity and that the people tasked with protecting them are instead too often pulling the trigger.

This is such a difficult concept to grasp for White people, for whom it is not even a luxury but bedrock that if something scary happens to you, you call the police and they'll protect you. The idea of "overpolicing" is almost impossible to grasp -- who wouldn't want more cops on the beat? Who wouldn't want to feel safer? I have myself an idiosyncratic fear of authority figures (people who can "get me in trouble"), which probably stems from some traumatic event that occurred in my childhood, and that includes police officers. But even for me, having this fear -- when I saw something scary in Hyde Park (what looked like a violent street abduction a half-block ahead of me at midnight), I called the cops without any hesitation and felt better -- safer -- when they arrived. It is virtually inconceivable to many Whites this idea of not having access to that sense of security; indeed, to experience its opposite.

But at this moment, that message is starting to get through as at least plausible. At least something worth talking about. We have, maybe, successfully indicted the practices of policing that have oppressed communities of color for so long. I don't want to overstate things -- there are plenty of people for whom the Darren Wilson decision is proof that the thug kid got what he deserved -- but I think even for some Whites out there ambivalent about this precise legal question, there is recognition that the broader issue is a live one worth talking about. The conversation is finally being seen as a valid one in ways that even a few years ago it wasn't. Maybe that's not a lot. But it is something.