The American Dilemma and How We Can Fix It

The Grand Jury system comes to us from England where it was implemented by Henry II in 1166.  So named because there are more jurors than a normal panel of twelve (a petit jury), its proceedings are done in secret.  If we were previously unaware of how these juries deliberate, that has been dispelled with the notable reportage on the events in Ferguson, MO and New York City.

One of the king’s motivations in using this secretive jury was to be able to ramrod indictments against those whom the crown wanted to prosecute.  I won’t repeat the much used phrase which explains how easy it is for a prosecutor to get an indictment from such a jury for fear of offending our Muslim neighbors.  That in fact, particularly in the Ferguson case, no such indictment was handed down has caused many to question the reason that occurred.  It is at this point that the facts seem to separate from the emotions and some people choose to infer motivations from the actions of the District Attorneys who were involved in presenting the cases.

Surprisingly, one of the greatest claims by those who reject the St. Louis County Grand Jury’s decision is that the system does not provide transparency.  Well, that is certainly true – and the system is designed in just such a manner,  Attorneys for the Brown family are outraged and believe that an indictment should have been handed down and that a public trial should have been conducted.  In fact, they believe the District Attorney should not have bothered with a Grand Jury but moved directly to trial.  That would certainly provide greater transparency, but one has to wonder whether it would have resulted in a different conclusion.

The level of proof necessary to obtain an indictment from a Grand Jury is far lower than that to convict, “beyond a reasonable doubt.”  There have been witnesses, notably Dorian Johnson who initially made the claim that Michael Brown was running away with his hands raised when he was shot in the back by Officer Wilson – testimony that was disproven by the forensics.  Mr. Johnson also changed other parts of his story in subsequent interrogations.  A reasonable person, even without referring to his own personal run ins with the law, might question his veracity as a witness.

On the other hand, six African-American witnesses testified to the Grand Jury that Mr. Brown was charging toward Officer Wilson when the fatal shot was fired.  They further concurred that they heard the officer order him to stop on two occasions – orders which Brown ignored.  Obviously, there is a vast difference between these two accounts.

For the sake of argument, let’s assume that in the Brown case the DA had followed the advice of the Brown family attorneys and gone directly to trial.  Given the glaring conflict in witness testimony, there are two possibilities that the trial jury would return a guilty verdict beyond a reasonable doubt – “Slim” and “None.”  But the people of St. Louis County would have had to bear the expense of a trial, the cost of additional and ongoing law enforcement presence throughout that trial – and probably the same amount of damage by way of looting and burning because the only “fair” verdict that those who see themselves as being “Brown supporters” will accept is one of “guilty.”

All of this begs the fundamental question – should we be fearful of authority abusing its power over the citizenry?  That is a question that exceeds the particular of race. If we accept, for sake of argument, that people of certain races are “targeted” and we allow that to continue with impunity, then we open ourselves to the possibility of belonging to some particular group which will subsequently fall into disfavor and be equally subject to that sort of persecution.

This is far more dangerous than what we saw in Ferguson or New York because it is an endorsement that people should have the ability to pick and choose the laws they wish to observe and those they choose to ignore.  Sadly, that is precisely the path that both President Obama and Attorney General Eric Holder have been following during their time in office.  When lawlessness is endorsed in actions by those whose jobs are to ensure that we are truly a “nation of laws,” then they give tacit endorsement to others to be law breakers themselves.

Let the riots, lootings and burnings begin.  Perhaps that’s what’s written on the Christmas cards the White House is sending out this year.



  1. I feel so sorry that there is so much mistrust in a nation I’ve always admired. The politicians need to stop fighting each other and start working out how they can get different groups of society to like and trust each other.

  2. The mistrust stems precisely from our politicians who believe it is in their interest (re-election) to fragment portions of society and cast them as victims. In fact, our poorest Americans are victims – but not of their race – but of the social programs that have continued their enslavement, long after the Emancipation Proclamation was delivered.

  3. Re; the grand jury, One of the other reasons that Henry II implemented it was to bring the courts under the crown (circuit courts and/or assizes) thereby freeing the citizenry from the very capricious manorial justice system imposed by William the Conqueror. It was as much as anything a move back to “the good old law” and a way to keep the innocent from being prosecuted. You know, like in Ferguson.

    More than anything it was designed as an investigative tool, hundreds of years before Peel dreamed of police forces.

    By the way, the Grand Jury is gone everywhere but the US.

    • Thank you for the expanded history lesson. You are, of course, correct.

      As to our being the sole nation that retains the Grand Jury system, that causes a person to wonder whether it is useful or outdated. To that point, I sincerely wonder if the Brown case had gone directly to a trial if we would have the amount of evidence that has surfaced. As I’m sure you know, “rewards” were beng posted for Officer Wilson’s home address – which the NY Times obligingly published. I wonder if several of the witnesses who came forward to testify in his defense would have done so if they knew their identity would be known, given the amount of criminal activity that has taken place.

      Good to hear from you. I was beginning to worry.

      • From what I saw (i’m not having the best season ever!) without the grand jury, it would simply not have gone to trial. Didn’t look to me like there was enough to even try for a conviction.

        The British have essentially thrown away a lot of the common law, including most of both Magna Charta and the 1689 Bill of rights (that ours is based on). Never doubt how important it is to have a constitution that is difficult to amend. it’s saved our rights many times, although we have some troubles in that area as well.

        The other prime example is that the UK abandoned impeachment just as we adopted it. It seems to me that it has somewhat of a deterrent effect even if almost never used.

        I also note that the Brits are thinking about adopting some type of recall for MPs, although how they’ll that though the Westminster Bubble I have no clue 🙂

        Little to worry about, I seem to be mending although sower than I’d like.

      • Best thoughts for a speedy recovery!

        I agree with you that the Brown case wouldn’t have gone to trial – except that would have caused worse repercussions than what we have seen. I believe that’s why it was handled as it was.

      • Thanks.

        I do as well, my friends around St Louis (some of whom would make Goldwater look liberal) all agree that he is a very good and honest prosecutor. I think he handled it perfectly, although I’m sure he could have done with a bit less ‘oversight’, (one could read that as either interference or inflammatory remarks, or both).

  4. Perhaps the saddest commentary on our justice system is that those who are in charge of it must consider the public and media’s response to a given case in determining whether or how to prosecute a particular case. That sends us down a long and very dangerous road. Trial by mob.

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