Let's review our current events over the last month or so that culminated in the Thanksgiving surprise by Mr. McCulloch and then the finding by the grand jury in Staten Island. To say that there has been a lot of discussion about racism and how it played out in these two cases (and all the others that have been discussed here in recent history) is a bit of an understatement. A lot of people are justifiably mad as hell and not going to take it any more. I don't blame them.
The idea I had in writing this diary is to explore the historical context which led to the most recent events. And, I also wanted to discuss what a grand jury is used for, how it can be manipulated by district attorneys and why we need to discuss an overhaul to our judicial process. I still have no idea how this is going to turn out, but I hope it turns out well.
The first order of business, historical context . . .
Racism in America has been here since the Pilgrims landed. It has been codified throughout the earliest laws before the United States was formally the United States. Howard Zinn outlined a few instances of these laws in his book "A People's History of the United States." More examples can be found by a simple review of old laws at your local law library, a little research at your local library branch and some are even available on the Interwebs.
Examples of these laws limit the contact between Euro-Americans (peoples from Europe who began settling on the East Coast and then spread westward) and anyone else who was not considered "White." Also, historical context is very important here as the Irish, Scots, Scandinavians, Italians, Slavs and other "new immigrants" from Europe were not considered "White" until they'd been taken over by waves of newer immigrants. It should further be noted that people of Jewish descent were not considered "White" until well into the 20th century. People of Hispanic descent, while their ancestors were definitely European, are still not considered "White," which is odd, but a complete aside . . . so, back to all this talk about codifying racism into our legal system . . .
Where was I? Ah, yes, so, in early laws across New England, indentured servants kept running away to join the "savages." Why? Because anyone could start out as an apprentice person (some call this a "slave"), work really hard at learning customs, the language, even marry into a tribe and eventually work up to being a master. And, the treatment of these newcomers was usually head and shoulders above what they received from their Euro-American bosses. Euro-American women ran away at much higher rates than men, in some areas, both indentured and free-women, because, well those darn savages gave them a say and a vote in their societies! There was a right to divorce, socialized medicine, a decent judicial system that treated everyone more or less fairly . . . who wouldn't want to live with those savages?!?!
Our founding fathers even thought so highly of how the Iroquois peoples structured their nation that our own nation was based on the Iroquois way of doing things. Sure, there's "democracy" in Greece and Rome that far predates our own country, but the structure of the new nation of the United States more closely resembles the Iroquois Nation than anything from Greece or Rome, especially the three branches of government being equal but independent of one another. I know this paragraph is going to get a lot of flak, but I will gently refer you to Howard Zinn and James W. Loewen as two great authors with whom to begin your journey of studying American history.
So, keeping Euro-Americans from exploring their options was a HUGE thing, yeah? Then, we had those pesky African slaves and needed additional layers of legal protection to keep the power with the Euro-Americans. As another historical aside: Euro-Americans thought it would be a great idea to enslave the indigenous peoples (heretofore referred to as First Nations)! The Euro-Americans began their version of slavery with First Nations' types, buying the first slaves from their enemies. Trouble was, the First Nations' types knew how to survive and kept running away. It got so bad that Euro-American slave owners often bought the same slaves over and over again! That is just bad for business, so those ingenious Euro-Americans decided it would make more sense to rip peoples from across the ocean away from their families, force them to immigrate to a new land where they had no ties and no idea of how to survive and then brutally mistreat them in the new land! Brilliant! But, those pesky First Nations' types also formed some of the first escape routes for these forced African immigrants -- it wasn't as efficient as just running away, but it still existed.
Where are we at now? Hmm . . . first laws codifying racism and injustice against First Nations' types? Check. Abbreviated history of where our brand of democracy came from? Check. Brief history of slavery? Check. All throughout this early history of the United States, more and more laws had to be added to instruct Euro-Americans about how they needed to treat the non-Euro-Americans (First Nations' types and now the new African slaves) and how it was just sooooo much better to be Euro-American than to run off and join the savages. These laws also give important historical context to our own particular brand of classism here in the States, which allowed for the rise of robber barons last century-ish and led to the new gulf between the very rich and the rest of us rabble.
Got a basic understanding of laws codifying racism? Have a little better understanding of why it's so important to be seen as Euro-American or "White," especially with regards to our judicial system? Good. Another book to peruse that also goes more indepth about race relations and our political strata is "Nixon's Piano," by Kenneth O'Reilly. Brilliant use of history, legal justifications and discussion of why America seems so hung up on race beginning with the first President, George Washington, and covering through President Bill Clinton.
Now, grand juries . . . Sol Wachtler, Chief Judge of the New York State of Appeals from 1985 to 1993, famously quipped that any district attorney worth his salt could indict a ham sandwich with a grand jury. Grand juries are a part of the judicial system where individuals taken from the local jury pool are called in to hear what cases the prosecution wants to present for trial. They range from dealing with petty crimes or victimless crimes to capital crimes. Prosecutors pretty much just try out their cases on the grand juries to see if they can get an indictment to proceed to trial.
(quick note: I use prosecutor, the prosecution, district attorney and DA interchangeably)
Only a very good judge will remind grand jurors as they are seated that it is of the utmost importance to question the prosecution's intentions and witnesses as they are presented. A grand jury must act as a sort of defense team in the absence of an actual defense team as cases presented to them are just the prosecution's side of things. It is the moral imperative of the members of the grand jury to ask questions, to cross examine the prosecutor, to think critically about every piece of evidence submitted for their review.
It is also a great failing in our present times that grand jurors are not reminded of their duties as grand jurors. Everywhere you look, it seems, that cops and prosecutors are shown as the good guys. From all the iterations of "Law & Order" to any other cop-based show, the idea that these are the good guys and defense attorneys are the bad guys who protect other bad guys, is driven into our minds, shapes how we think about the justice system. Cops and district attorneys are the white hats, the "perps" and their defense teams are the black hats.
So, when a grand jury is selected, this is how they see the prosecutors. And, being reasonable citizens, the grand jury members want to stand for law and order, the American Way and apple pie. These citizen jurors want to be on the good side of things. And the prosecutor most likely also reminds these average joes that the only thing standing between them and their worst nightmares is the cops and the prosecutors. The jurors are locked into a jury room with the prosecutor(s) working on the case for 8 hours a day. They are given breaks every so often, but still, they are not informed of what all their responsibilities as grand jurors entails and then they are sequestered with the DAs who are presenting their cases. Anyone would say that this is furtherance of the basic human need to want to please those who are viewed as having power. Perhaps this could be Stockholm syndrome?
Moving on, so, then, it comes time to vote to true bill a DA's case or not true bill it. And, as we saw with the Michael Brown case, the DA's office did it's utmost to obfuscate the facts of the case by burdening the jurors (who are not legal scholars nor are they research analysts or data/policy wonks, they're just your average American citizen, typically) with mountains of raw data, conflicting witness statements, 4 hours of testimony by former officer Darren Wilson and no clear way of discerning what the data was supposed to present. Added to that, it seems that one ADA (assistant district attorney) further tainted the jury by presenting an outdated and obsolete law . . .
But, Mr. McCulloch had no intention of bringing Darren Wilson up for trial. Mr. McCulloch has additional problems as . . . well, there have been numerous articles written here as well as across the news organizations about Mr. McCulloch's conflicts of interest.
The real problem, though, is that the DAs rely on the cops to bring them evidence of crimes. DAs do not want to antagonize the police and the police know this. The whole police culture and training is not about seeing all the various shades of gray, but in seeing a world in black and white, us versus them, good versus evil. Many police academies are employing fear-based, paramilitary training to new recruits. If you get on the bad side of a cop, you are pretty much signing yourself up for trouble -- at least that is what the local DAs are afraid of, should they have to prosecute a cop. Heaven forbid if they have to prosecute multiple cops or an entire department.
After all that rather depressing information, what are we as a country going to do about it? Now that we clearly see what harm institutionalized racism has done to our judicial system, how are we going to move forward to provide corrective changes?
I think US Attorney General Eric Holder has done one great job in shifting some of the inertia into kinetic energy, beginning with his revision of drug sentencing. I was deeply saddened at the news of his resignation. What he has managed to do in his time as US Attorney General is simply revolutionary. How can we best keep that momentum going?
I ask because we need to continue this nationwide dialogue and effect real changes to ensure that future generations can look back at us with a sense of pride. We need to continue the civil rights efforts that were started half a century ago. We need to continue working to make this a more perfect union and try to leave this country in better shape for the following generations.
*Title was changed from "Race Relations and the Great American Way."