Police guard the front of the Buzz Westfall Justice Center where a grand jury will begin looking at the circumstances surrounding the fatal police shooting of an unarmed teenager Michael Brown on August 20, 2014 in Clayton, Missouri.

Police guard the front of the Buzz Westfall Justice Center where a grand jury will begin looking at the circumstances surrounding the fatal police shooting of an unarmed teenager Michael Brown on August 20, 2014 in Clayton, Missouri.

On Wednesday, Attorney General Eric Holder met with the parents of slain teenager Michael Brown and others in Ferguson, Missouri. The unarmed black teen was shot and killed Aug. 9 by a white police officer. Outrage over the incident sparked days of protests and violence. Holder has pledged there will be a full and fair investigation. Separately, Missouri prosecutors are presenting evidence to a grand jury for possible prosecution of the officer who fired the shots. Diane and our guests offer an update on efforts to get to the facts related to the shooting and to address familiar but deeply troubling questions about police tactics and race relations.

Guests

  • Nicole Austin-Hillery director and counsel, Brennan Center for Justice, New York University School of Law
  • David Harris professor of law, University of Pittsburgh
  • Jesmyn Ward associate professor creative writing, Tulane University, her books include a memoir, "Men We Reaped" and the novel, "Salvage The Bones"
  • Paul Butler professor at Georgetown Law School.
  • Peter Baker reporter for The New York Times.

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. A grand jury here's evidence on the shooting death of Michael Brown, an unarmed black teenager in Ferguson, Missouri, on August 9. Attorney General Eric Holder pledges the separate federal investigation he's leading will be fair and thorough. Joining me to talk about the ongoing outrage and questions remaining, Paul Butler of Georgetown University School of Law, Peter Baker of the New York Times, Nicole Austin-Hillery of NYU's Brennan Center for Justice.

  • 10:07:34

    MS. DIANE REHMJoining us from a studio at WESA, David Harris of the University of Pittsburgh School of Law. I invite you to be part of the program. Give us a call at 800-433-8850. Send us your emails to drshow@wamu.org. Follow us on Facebook or send us a tweet. And thank you all for joining us today.

  • 10:08:04

    MR. PAUL BUTLERIt's great to be here.

  • 10:08:05

    MR. DAVID HARRISThanks for having us.

  • 10:08:05

    MR. PETER BAKERGood morning, Diane.

  • 10:08:06

    MS. NICOLE AUSTIN-HILLERYYou're welcome, Diane, and thank you for having us.

  • 10:08:09

    REHMPeter Baker, let me start with you. Tell us about Eric Holder's visit to Missouri. Do you think it made a difference to the people of Ferguson?

  • 10:08:23

    BAKERWell, I think it's a great question. I wasn't there so I want to be careful about overstating what we know, but he did go to Ferguson to show support for the investigation, to vow a fair and full investigation. I think more importantly to show that the highest levels of government are committed to addressing the issues that this community has been voicing in the last few days.

  • 10:08:45

    BAKERHe said -- he went beyond what a normal prosecutor might have said in which you would talk about the investigation, you would talk about the 40 FBI agents you've got canvassing. He went beyond that to talk about his own experiences as a black man in America, the frustrations he's had growing up when he was stopped, he felt, unfairly by the police.

  • 10:09:01

    BAKERHe said very viscerally, he says now that young man who was stopped unfairly in the New Jersey turnpike is the Attorney General of the United States and so there is progress in America, it's just not as far or fast as we might want it to be. So I think there's a connection that he could make with the community that some of his predecessors might not have been able to make in quite the same powerful way.

  • 10:09:21

    REHMAnd Paul Butler, talk about calls for replacement of the prosecutor in this case.

  • 10:09:30

    BUTLERSo the local prosecutor who would bring any kind of homicide case against Officer Wilson has what looks like some fairly serious conflicts. His father was a police officer and tragically was killed by an African-American man. This is many years ago. He has several other relatives who are employed by the police, including his mother, his brother, his uncle and his cousin.

  • 10:09:56

    BUTLERIn addition, there's been real concern in past cases in which young black men have been victimized by the police that he hasn't brought charges. Moreover, he's been the biggest cheerleader of the local Ferguson police and how they've controlled their crowds. And I don't think anyone thinks that's the finest moment in law enforcement.

  • 10:10:17

    BUTLERSo the question is, could he fairly evaluate and prosecute a local police officer. You know, so many -- in these kinds of racially charged, high profile cases, often it's not just justice, it's about the appearance of justice as well. And there are serious concerns about the appearance of justice. Last, real quick, you know, if he doesn't bring the case, there are gonna be questions. If he brings the case and loses it -- and these are hard cases for prosecutors to win.

  • 10:10:46

    BUTLERBut if he loses it, there are gonna be concerns that he didn't try hard enough. So I think and a lot of people think that even in his best interest to let someone else handle this investigation.

  • 10:10:55

    REHMDavid Harris at the University of Pittsburgh, how difficult do you think it will be to get to the facts of this case?

  • 10:11:09

    HARRISDiane, I think it'll be very difficult. There are some witnesses, of course, and then we have the officer who will supply information as well. But these cases, as Paul said, are never easy. They task now is to gather as many witness statements and facts as they can do on the ground and to compare it to any physical evidence that might be out there, especially the autopsies, to see which statements square up with the physical evidence because, as we know, there was no video of the incident itself.

  • 10:11:45

    HARRISIt will also be difficult, I think, because there is so much distrust of local law enforcement. It's one of the reasons that it's a good thing that the justice department is in investigating itself because perhaps, they may have more credibility. And, of course, as the situation has gone on after the shooting, some of the events that have followed have further damaged the credibility of local law enforcement, I think, to the detriment of the investigation.

  • 10:12:11

    HARRISSo it's going to be tough. It is imperative that it be thorough and fair, as the attorney general said, that it makes a straight call, that it -- that the people involved are not influenced or dissuaded in any way from doing justice. Ultimately, that is what the people want there. They want justice.

  • 10:12:29

    REHMAnd there was, as you said, some subsequent events. There's a very disturbing cell phone of a man shot by police earlier this week, not far from where Michael Brown was killed, a video that seems to not match with the report given by the St. Louis police. David Harris.

  • 10:12:59

    HARRISYes, that's right. This shooting took place just three and a half or four miles from Ferguson. The initial reports indicated that the police had come up upon a scene of this disturbed man outside a convenience store who was armed with a knife. I have watched the video. I have listened to the 911 calls and the radio dispatch.

  • 10:13:20

    HARRISThere are some inconsistencies between what you see on the video and the initial reports. The initial reports indicated that the police came out without their weapons from their car and you can see pretty clearly and hear in the bystander commentary that the police had their weapons out. The thing moves incredibly fast. The picture is too far away to know what kind of a grip the man had on the knife or anything like that.

  • 10:13:44

    HARRISBut, you know, a major difference, even though there are inconsistencies, is that the St. Louis police did what the Ferguson police refused to do. They got right out ahead of this and put out all the information they had as soon as they had it. The chief even went down to the scene to talk to residents and people around there. You cannot underestimate the difference that that kind of transparency can make, even if you can't share all the information.

  • 10:14:12

    HARRISFor instance, they didn't use the officer's identity. That was a huge help to them in terms of getting the situation early and not having it spin out of control.

  • 10:14:23

    REHMAnd turning to you, Nicole Austin-Hillery, there are many people who say that federal funding for police equipment and counterterrorism training has really played a role here in the overall escalation of tensions. How do you see it?

  • 10:14:47

    AUSTIN-HILLERYI think that's absolutely right, Diane. You know, at the Brennan Center, we did a report on the militarization of the police in terms of funding and how many dollars have been put into insuring that monies are going to local law enforcement and how those monies are being used. And I think that's a problem. We understand the genesis of that, that it was a response to 9/11 and feeling as though our local law enforcement really need to be prepared to deal with terrorism and other attacks on our domestic soil.

  • 10:15:17

    AUSTIN-HILLERYBut the thing that has happened is that local police have been using those weaponries for other instances, not necessarily to deal with terrorism and that is what has caused a problem. But the real issue with respect to this federal funding is that there really are not checks and balances in place, Diane, and that's one of the things we've been looking into.

  • 10:15:37

    AUSTIN-HILLERYNo one is really minding the storehouse to look at how are these dollars being spent once the federal government sends these dollars to local law enforcement. Are they being spent in such a way to insure that the requisite numbers of weapons and other materials that the local law enforcement actually needs are what's being purchased? Are they going overboard in terms of how they are equipping themselves?

  • 10:15:59

    AUSTIN-HILLERYAnd no one is monitoring exactly how this equipment is being used and that is part of the problem. We think there needs to be some safeguards put in place to insure that the federal government is actually monitoring how the dollars are being used, what local law enforcement is doing with these dollars and insuring that they are not using them in such a way to cause racial disparities and racial tensions in their local communities.

  • 10:16:21

    REHMAnd Paul Butler, talk about the disconnect that seems to exist between the community of Ferguson and the police department itself.

  • 10:16:34

    BUTLERSure. You know, when there are checks and balances that are the kind that Nicole was talking about, they're perverse. So through one of these programs, if you get all this military equipment and you're a local police department, you have to prove within a year that you've used it or the government gets mad at you and won't give you anything else.

  • 10:16:51

    BUTLERSo that leads to obvious kinds of tensions between the police and especially the African-American and Latino community. So, you know, everyone's focused on Ferguson right now, but these events are going on all over the country. There's something that happened in L.A., in New York. Eric Garner was, you know, killed by a police officer using an illegal chokehold.

  • 10:17:13

    BUTLERThere's just this fundamental breakdown in trust, you know. The ways that law enforcement folks deal with communities of color is to lock up as many people as they can and it's compounded in places like Ferguson where you have this city that's two-thirds African-American and you have a cop force that's overwhelmingly white.

  • 10:17:38

    BUTLERNow, having a diverse law enforcement, that doesn't solve all the problems, but it makes a difference. And interestingly, gender, it turns out, gender diversity with cops makes a huge difference as well. If you have women police officers, they're much less likely to use force than men. So I say in Ferguson now, instead of 53 cops with 50 of them begin white, we go for 53 African-American women cops in Ferguson.

  • 10:18:09

    REHMDo you think that would really solve the problems that exist there between the police and the community?

  • 10:18:18

    BUTLERI think that they wouldn't look -- there's a war mentality now. It's us against them. And if you have, you know, I'm being a little bit facetious, but if you have black women cops, I don't think they'd look at their citizens as their enemies.

  • 10:18:32

    REHMPaul Butler, he's professor at the Georgetown University School of Law. Short break here and your calls, comments when we come back.

  • 10:20:00

    REHMAnd welcome back. We're talking about the tragedy in Ferguson, Mo. with the killing of Michael Brown, a young black man by a white police officer. There has been lots of talk, Peter Baker, about the whole issue of transparency in this investigation. How can this group of investigators truly achieve transparency that will be accepted by the people of Ferguson, Mo.?

  • 10:20:43

    BAKERWell, that's a great question and a hard question too because, in fact, any investigator will tell you that transparency in an investigation goes two ways, right. You saw what happened when the local authorities released the video tape of Michael Brown in that shop appearing to steal some items there that simply was more an incendiary decision on their part. The Attorney General Eric Holder had advised them not to do that.

  • 10:21:09

    BAKERAnd he, in fact, has said, you know, we have to have transparency but at the same time we have to protect the integrity of the investigation. He says -- he told a conference call, the people who asked him, you know, have you all interviewed the police officer, Officer Wilson? And he said, well, I'm not going to tell you that because, in fact, you know, I think we should keep this investigation, you know, focused on the facts and not play it out.

  • 10:21:33

    BAKERSo it can go both ways. Transparency's important in terms of building credibility with a community that doesn't trust the authorities. And that's an important factor but you -- there's a very visceral, you know, feeling on the part of professionals like Eric Holder and like the people who's working -- who worked for him at the FBI not to taint the investigation with too much information. And where they find that balance is a tough thing, because there are two different imperatives there.

  • 10:22:02

    REHMAll right. And joining us now by phone from DeLisle, Mississippi, Jesmyn Ward. She's associate professor in creative writing at Tulane University. Her books include a memoir, "Men We Reaped" and the novel, "Salvage The Bones" Jesmyn, in your memoir that's about to come out in paperback, you write about the death of your brother. Tell us what happened.

  • 10:22:38

    MS. JESMYN WARDHe was killed, hit by a drunk driver in October of 2000. My brother, of course, was young and black. He was 19 years old. The man that hit him, the drunk driver was older and white. When the -- after the man that hit him was found he was, you know, there was a trial but the man was not charged with manslaughter or anything really associated with my brother's death. He was charged and convicted of leaving the scene of an accident. And that's the only thing that he was held accountable for. And he was sentenced to five years in jail.

  • 10:23:21

    MS. JESMYN WARDAnd he was also supposed to pay some sort of restitution and he never paid any of the restitution. And then he only served around three years in jail and then they let him out. So...

  • 10:23:35

    REHMAnd you also tell stories of several good friends, young men, who also lost their lives.

  • 10:23:45

    WARDYes. And they -- I mean, you know, they lost their lives in different ways, car accidents, suicide, you know, murder. But in each of their -- you know, in their lives and in their deaths I feel like when I wrote the book that, you know, nobody was held accountable. You know, nobody was -- you know, the murderers were never found. You know, if they -- so my friend that committed suicide, his depression was never -- you know, it was never treated. It was never acknowledged.

  • 10:24:25

    WARDAnd, I mean, through all of this I saw this common thread running that -- at least for me, I saw that, you know, specifically young black men's lives were devalued. And I think that's true of young black men and young black women as well in this country.

  • 10:24:45

    REHMPaul Butler, would you agree with that statement of devaluation of young black men and women?

  • 10:24:54

    BUTLERAbsolutely, Diane. First of all, let me have a fan boy moment about Jesmyn Ward. And her book "Men We Reap" is one of the most moving, provocative and real accounts of race right now that I've ever read. So big up to my sister. Great work, great work.

  • 10:25:12

    WARDThank you.

  • 10:25:13

    BUTLERAnd, yeah, so what she demonstrates in that book is it's not just the criminal justice system. It's the civil justice system as well. And it's just not a war on drugs. It's a war on black bodies overall. So it does seem like there's some kind of devaluation of African-American and Latino bodies that's being demonstrated.

  • 10:25:36

    BUTLERAnd I think part of the frustration in Ferguson is, this is 2014. We have an African-American president. People were dancing in the streets of Harlem the night he was elected. And now we have this image of civil rights protestors being tear gassed in the streets of Ferguson. Just like the '60s. It doesn't seem like we've come that far. And I think there's a lot of frustration around that.

  • 10:25:59

    REHMDo you agree with that, Nicole?

  • 10:26:03

    AUSTIN-HILLERYI definitely agree with that, Diane. You know, one of the problems that we're facing is that we have a criminal justice system. And a huge swath of the American public simply feels that they don't have confidence in that system. It's not so much that they think the system in and of itself doesn't work, but they think that the actors, the stakeholders who are involved in that system and who are charged with making certain that it works for everybody are not doing their job.

  • 10:26:30

    AUSTIN-HILLERYPeople feel that they do not -- that they cannot trust the outcome. And that's a huge part of the problem. And so we've got to figure out what do we change systemically about our criminal justice system to ensure that everyone feels that when they have to deal with that system, they can trust that they will at least get a fair shake.

  • 10:26:51

    REHMDavid Harris, how do you see it?

  • 10:26:55

    HARRISWell, I think that comment about trust that Nicole just made is really key. When you have that many people, a significant number of people who do not trust the system -- trust in the system sounds very soft but it is the key ingredient in whether or not people obey the law, whether they see the law and the police as legitimate, whether they want to obey and help and be part of making public order along with the police, which of course is the heart of good community policing.

  • 10:27:27

    HARRISIf you have people who distrust the system that deeply, you have a major problem. At best, law enforcement will be fighting with one hand tied behind its back because without the community as a partner, there's only so much they can do. And we've seen the results of this distrust on display, both positive and negative in Ferguson. The depth of distrust of the local authorities was obvious from the first. They made things worse by bringing in the military equipment and Humvees and everything else to face mostly peaceful demonstrators with signs.

  • 10:28:02

    HARRISThen when the highway patrol came in that first night, that Thursday night, things immediately took a better turn because you saw Captain Ron Johnson with the Missouri Highway Patrol walking with them, understanding with them. And there was an immediate shift which was destroyed the next day by the release of that robbery report which seemed to have nothing at all to do with the shooting of the young man himself. So without trust you can't get along, you can't communicate, you can't have a true partnership. And that is the bedrock of what makes good public safety and good policing.

  • 10:28:37

    REHMPeter Baker.

  • 10:28:38

    BAKERWell, one of the things people talk about lately is -- as a result of this is the idea that there should be more accountability on the scene. And the idea, as for instance, these devices that police officers can wear on their uniforms that videotape in effect encounters with the public. They provide a record that we don't see. We don't know what happened with Michael Brown. We have eyewitness accounts, all of which are suspect to, you know, the individual and known...

  • 10:29:02

    REHMAnd conflicting.

  • 10:29:03

    BAKER...and conflicting, and how do you make that determination. You know, one witness said he was shot in the back. The autopsy says, no, he wasn't. You know, was he charging? Was he surrendering? Without the video, if we had one, would help us make those determinations. David Harris talked about the video in the other case which he found to be somewhat conflicting with the versions that were provided.

  • 10:29:24

    BAKERPresident Obama actually addressed this as a state senator in Illinois when he was in Illinois talking about the death penalty, which was under criticism then in that state. He proposed and worked with prosecutors and community groups to pass legislation that would require interrogations in death penalty cases to be videotaped so that there would be no question as to coercion or how those confessions, if there were any, were obtained.

  • 10:29:49

    BAKERAnd so it seems like, you know, we have videos now on police cars when they make traffic stops. We can now, you know, make judgments based on that. It just seems like a common sense thing that police can do to help create transparency and accountability.

  • 10:30:03

    REHMPeter, you wrote in yesterday's New York Times about the contrast between the behavior of President Obama and the attorney general. Explain what you mean.

  • 10:30:17

    BAKERYeah -- no, it's interesting to watch as these two men approach an issue like this. They're both, of course, you know, share the same values, the same concerns, the same commitment to some of the policy issues that have come up lately. But there's a difference if you watch them, right? President Obama's more reserved. It's part of his nature. It's part of his personality.

  • 10:30:40

    BAKERIt's also his role as president. He didn't give his fulsome condemnation as some people would have liked him to have given of the actions of the police in Ferguson. He views this as something he doesn't want to put the finger on the scale. He's the president. He's in charge. He's the highest law enforcement officer in effect in the land. He doesn't want to, you know, tilt the investigation one way or the other. But it didn't sound as visceral as it did when he talked about the Trayvon Martin case, the difference being Trayvon Martin's case had been finally adjudicated by the time the president spoke about his personal reaction to that. This case is an active investigation.

  • 10:31:12

    BAKERHolder, Eric Holder, by contrast, is now on the ground -- was on the ground, talked very personally about his own experiences, his own feelings about these types of issues. He has a different background. He's ten years older. He grew up in the civil rights era. His sister-in-law was one of the first two African-Americans who attended -- enrolled in the University of Alabama under the protection of the National Guard in George Wallace's Alabama. He said -- was stopped himself a number of times.

  • 10:31:39

    BAKERPresident Obama grew up in Hawaii and Indonesia, not part of the same experience, a little bit more removed. Obviously he's had experiences of his own as a grownup living in the United States and in Chicago and in New York. They have formed his views but they come out of different perspectives.

  • 10:31:54

    REHMPaul Butler.

  • 10:31:55

    BUTLERYou know, people say that Obama was so reticent at the press conference on Monday because he couldn't talk about it because there was a pending federal investigation. Guess what? When he made those statements about Trayvon Martin, how that could've been his son, there was a pending federal investigation. It's still going on of whether George Zimmerman violated Trayvon Martin's civil rights. So that's not the reason.

  • 10:32:15

    BUTLERI think it's a difference, not just in style but in substance. So at the beginning of the administration, Eric Holder started out saying we're a nation of cowards. We don't like to talk about race. President Obama shut him down. he said, I'm not a person who thinks that talking about race really makes a difference. So I think we've got this tension between this old school race man, the attorney general, who said yesterday, I'm not just the attorney general, I'm African-American, and a president who doesn't like to talk about race and wants to be judged in a color blind, post-race way.

  • 10:32:46

    REHMPaul Butler, professor of law at the Georgetown University, and you're listening to "The Diane Rehm Show." Paul Butler, how long will the grand jury process likely take?

  • 10:33:02

    BUTLERWell, we know at least until October, based on what the local prosecutor said. So they do have to look at all the conflicting testimony. They've got three different autopsy reports, toxicology and they only meet once a week. So it's going to take a while. I think they also hope that tensions will go down so that the investigation can be perceived by everyone as more objective.

  • 10:33:23

    REHMJesmyn Ward, I want to ask you your thoughts on both President Obama and Eric Holder and their reactions to what's happened in Ferguson.

  • 10:33:40

    WARDI think that we should be talking about race. You know, I think that it's important to acknowledge that there's a problem because I think that's the only way that we're going to be able to work to a solution. You know, I mean, maybe because I'm a writer, maybe that's the reason that I feel that way. I mean, I believe in the power of words. And so, I mean, I think it's important for us to talk about these things. I think it's important for us to acknowledge because that's -- for me, I mean, that's how you begin to -- you know, that's how you begin to work your way to different solutions.

  • 10:34:12

    REHMAnd go ahead, Nicole.

  • 10:34:15

    AUSTIN-HILLERYAnd just to follow up on that, Diane, and going back to what Paul said, you know, I think one thing we have to be very clear about, as the president you are the leader of the nation. The buck stops with you. I think one of the reasons why it's so difficult in this country for us to have real conversations on race is because the president is reticent to have those conversations. I think if he leads the way on that, that would open the doors for other people to feel that they can do so as well and have some comfort with it.

  • 10:34:42

    AUSTIN-HILLERYYou have to, as the leader, lead the people, even in tough -- even with respect to tough discussions and tough issues. And I think when you hear people criticize the president on this, that's what they're saying. They're saying, we want you to step up as the leader and say it is okay to have these conversations and I'm going to be the one who leads us on this.

  • 10:35:02

    REHMPeter Baker, what about the president's statements on race early in his presidency?

  • 10:35:11

    BAKERWell, you know, he's -- I think everybody's exactly right. I think he is reticent to be -- to talk about this. I think he's reticent to be seen as an African-American president as opposed to a president who's African-American. He asks to be judged on the same way his 43 predecessors were. And from time to time you hear frustration on the part of him and his people around him saying, well, why should he -- why do you expect him to do things you don't expect or you wouldn't have expected other presidents to do? Is that a double standard?

  • 10:35:40

    BAKERYou know, it's a balance he has sought to achieve. His first term, he really did stay away from these issues. He felt burned, I think, when he did comment on the Skip Gates case up in Harvard. He was arrested by the police and the president was asked about it at a press conference. And he was pretty tough on the police about that. And he stayed away from it largely until his second term.

  • 10:36:01

    BAKERIn his second term he's been a little bit more open about it. He hasn't, you know, become what Eric Holder was yesterday but he did talk about the Trayvon Martin case. He has founded this organization called My Brother's Keeper to focus on helping young African-American and Latino men to make it in today's society. And I think he has supported more policy initiatives that General Holder has put forward in terms of sentencing reform, clemency, voting rights and racial profiling. It hasn't been as much as a lot of his supporters would like him to do, but he has inched closer toward those types of issues.

  • 10:36:38

    REHMDavid Harris, I know you wanted to comment. We have about a minute before a break.

  • 10:36:45

    HARRISYeah, I'll just say very quickly, Diane, that when we don't talk about race, the normative feeling is reinforced. And most people in this country feel that race gets too much attention, not the other way around. One thing that the president leading this discussion could do would be to bring that out into the open. He doesn't have to take a position. He can after all say, I was from a black family and I was from a white family. Anything to bring it out of the corner out into the light to discuss it more openly I think would be beneficial. He shouldn't worry about not wanting to be the black president. He should worry about being the president. And this is an issue for us.

  • 10:37:29

    REHMDavid Harris, professor of law at the University of Pittsburgh and Jesmyn Ward. Thank you so much for joining us. Short break.

  • 10:39:59

    REHMAnd it's time to open the phones for your questions, comments. First to Orlando, Fla. Kelby, you're on the air.

  • 10:40:09

    KELBYThank you. I -- thanks for taking my call, Diane.

  • 10:40:12

    REHMSure.

  • 10:40:13

    KELBYAnd great show.

  • 10:40:14

    REHMThanks.

  • 10:40:15

    KELBYMy question for everybody on the phone is what I'm trying to figure out is that this whole time with this thing happening in Ferguson -- what I don't understand is that the police officers are normally carrying two weapons or two defenses. One is a lethal one, which is a gun. And the other one is the Tasers. Now, what I don't understand is why isn't the Taser being used for criminals that are not using -- not having weapons? Or they, let's say, they're holding a knife. A knife to a Taser, there's a chance that if you tase them they will quickly go down. Why wasn't that used with the Michael Brown case?

  • 10:40:58

    REHMPaul Butler?

  • 10:40:59

    BUTLERSo part of this goes to the training of local law enforcement that's so important, that Nicole mentioned earlier. You know, they have the right to use deadly force if they feel like their lives are threatened. And no one can begrudge them that because they do have very difficult jobs. At the same time, they have the duty to serve and protect all of the citizens. And this is an area where, sadly, race is deeply embedded.

  • 10:41:22

    BUTLERSo there have been studies that show that cops are more likely to shoot at unarmed African-Americans than they are at armed white Americans. So, you know, it's a problem that really goes to the sanctity of life and the ways that we feel differently about African-American lives.

  • 10:41:38

    REHMAnd, Nicole, you are particularly concerned about training of police officers.

  • 10:41:44

    AUSTIN-HILLERYYes. The advocacy community, Diane, is very concerned about what are the best practices that need to be put in place to reform problems that we see in the criminal justice system. So how we train police is a big part of that. You know, the Department of Justice, to their credit, Mr. Holder has actually been very focused on what reforms need to be put in place to make the criminal justice system work better.

  • 10:42:05

    AUSTIN-HILLERYHe has this initiative called Smart On Crime that he introduced at the end of 2013. And part and parcel of that and one of the things that they're looking at is how do we make sure that police officers are doing a better job in terms of working with the community. Changing their manuals, making sure that they are being taught how to deal with varying circumstances is a big part of that.

  • 10:42:28

    AUSTIN-HILLERYMaking sure they're getting more involved with the community and engaging in community policing is a part of that. So I think what's important about this moment in history, in this situation that we're dealing with, is not only do we have to highlight the problems, but it's a perfect opportunity for us to talk about what kinds of practices need to be put in place…

  • 10:42:45

    REHMOf course.

  • 10:42:46

    AUSTIN-HILLERY…so that we can reform the system. And this is one of them.

  • 10:42:48

    REHMAnd, David Harris, you've got police and citizens all over the country watching what's happening here in Ferguson. Do you believe changes will come into place as a result?

  • 10:43:07

    HARRISI think we're at the beginning of that conversation. And we've needed to have it for a long, long time. I think what we will see first and foremost is a real consideration of whether this militarization, the weapons, the equipment and so forth, whether that will continue as it is. I think we will also have a lot more discussion about when force is appropriate, when is deadly force appropriate, and what is excessive force.

  • 10:43:35

    HARRISYou can't simply go on with a parade year after year of deaths of unarmed people at police hands without some reconsideration of whether generally speaking we're too quick to use force and, as Paul said, too quick to use it when the person in the gun sights is African-American and not white.

  • 10:43:57

    REHMAll right.

  • 10:43:58

    HARRISThe -- yes.

  • 10:43:59

    REHMAll right. Let's go to Alex, in Hull, Mass. You're on the air.

  • 10:44:07

    ALEXHi, Diane. Long-time listener, first-time caller.

  • 10:44:10

    REHMThank you.

  • 10:44:10

    ALEXMy only -- it's my -- it is a real comment on what I feel is there's a lack of honesty and clarity in the discussion. Not on your show, but just in general with the major players talking about this whole issue. That there's so many things, there's a militarization of police, there's a lot of issues, but people were so quick to jump the gun when this first happened. And to say this was a clear-cut issue of police brutality, of gunning down an individual, who now -- there's a lot of questions about.

  • 10:44:39

    ALEXWas he -- not just was he robbing a convenience store, but did he try to attack the cop, did he break his eye socket? And I completely sympathize with your guests and the discussing of police brutality and the issues the African-Americans face, but my issue is why does -- it's hard to have an honest discussion when we start from a place of dishonesty. And that's how I feel has happened. The facts aren't clear at all what happened here.

  • 10:45:05

    ALEXYou know, 65 police officers were killed this year, so far, up until August. So there is a danger in being on the job. And I think there's two sides to the story. And I feel like in the media, it's just being -- it's one-sided. And it's not -- nothing good will come of that.

  • 10:45:19

    REHMTwo sides to every story, Peter.

  • 10:45:22

    BAKERWell, you know, look, that's a -- it's an important point and it's an important point for media to remember -- and I say that as a member -- to be cautious about what we think to be the facts in any circumstance, this case or whether it be circumstances in war zones or politics or any other case. People's perceptions of the same events are often different. I'm always struck by law schools that make that point to their students that, you know, you can have the exact same event and different people see it different ways.

  • 10:45:50

    BAKERIn this case we don't have the video, we don't have an objective account in that sense of it. And the media ought to be careful about that. Having said that, what's striking about this story from a media perspective isn't even necessarily just the Michael Brown case, but the passions and the frustrations that it has unleashed or brought to the surface of a community in Missouri has obviously had -- touched on a lot of communities in this country. If it were just a one-off situation…

  • 10:46:20

    REHMRight.

  • 10:46:20

    BAKER…if it were just an oddball, terrible freak accident, terrible freak occurrence of some sort, that would be one thing, but in fact, it's brought up this larger conversation we're having in American life. And it almost, you know, the specific circumstances, we'll eventually, hopefully learn more about the Michael Brown case, but we're having a broader conversation that something even deeper.

  • 10:46:38

    REHMWhat do we know about the damage to the police officer's face?

  • 10:46:46

    BAKERYeah, that's -- I'm not reporting that level. So I don't want to state something I don't really know actually.

  • 10:46:51

    REHMOkay.

  • 10:46:51

    BAKERIn keeping with the…

  • 10:46:53

    REHMYeah, exactly.

  • 10:46:54

    BAKER…caller's thing. I want to state only what I actually do know at this point.

  • 10:46:54

    REHMI mean that's something that came out yesterday. Do we know anything further, Paul Butler?

  • 10:47:01

    BUTLERWe know it came really late and after the fact. It goes to the lack of transparency, which leads to, frankly, lack of trust in that local police department. I don't know why they wait so long to say stuff that should have come out at -- from the beginning. You know, real quickly, the other concern though is some of this stuff, like Rodney King and Eric Gardner we know because of videotape. And by we, I really mean a lot of people who aren't people of color.

  • 10:47:27

    BUTLERWhite people know it. So this is stuff that African-Americans, Latinos, poor people have been saying happens all the time. And we don't get believed until other folks see it on tape.

  • 10:47:37

    REHMAll right. To Marsha, in Tampa, Fla. You're on the air.

  • 10:47:42

    MARSHAHi, Diane. Thanks for taking my call.

  • 10:47:44

    REHMSure.

  • 10:47:45

    MARSHAI would like to say that I am also very disturbed by this rush to judgment. I think the president struck the right tone. We don't know the facts yet. I've heard that the police officer's eye socket was broken because Michael Brown tried to get his gun. There's a video on YouTube of Michael Brown's body lying in the street and you can hear a voice saying that he started running away from the police officer, but then he turned around and charged the police officer. And you have to get the two sides of the story.

  • 10:48:12

    MARSHAWe haven't heard the police officer's side of the story, yet everybody's persecuting him. And the last thing I want to say is that here in Tampa, three years ago, two young police officers went up to car on a routine traffic stop. A young black man was in the car. He took out a gun and shot them both in the head. And one of them had -- was the husband of the friend of my daughter, who -- he left behind three small children. The other one was engaged to be married.

  • 10:48:37

    MARSHAThe black community hid this murderer for three weeks. Nobody would bring -- nobody would say where he was. And it was only when a substantial reward was offered that this guy was turned in. So there are two sides to every story. And we're only hearing one. And I'm very offended by that.

  • 10:48:55

    REHMNicole?

  • 10:48:56

    AUSTIN-HILLERYDiane, let me say this about this idea that there's a rush to judgment. One of the issues that you are seeing percolating, in terms of the anger that you're seeing in the community, is because people feel that there are two separate ways of treating individuals who commit crimes. It is not so much that people want to circumvent the justice system. It's that they want to feel that that officer is going to be treated the same way any other human being in this country who committed the same crime would be treated.

  • 10:49:28

    AUSTIN-HILLERYIf you or I killed someone, shot someone here on the streets of Washington, D.C., we would immediately be arrested. We would then go through the process and we would have an opportunity to present our case to offer defenses. But we would not have the freedom to then go home or walk the streets while an investigation is underway. Part of the anger that you see percolating in Ferguson is because people feel as though, well, this officer committed a crime, everyone knows he shot this individual.

  • 10:49:57

    AUSTIN-HILLERYAnd, yet, he is still walking free. And why is this happening? And people are angry about that. They feel that there are double standards. And that's really what people, I think, are talking about. It's not so much that they want him to be unfairly judged. They would like to see equal treatment, in terms of how this white officer gets treated versus how someone else would get treated.

  • 10:50:18

    REHMBut the language you've used, Nicole, you said he committed a crime. We don't know that, yet.

  • 10:50:28

    AUSTIN-HILLERYWell, Diane, let me be clear. We know that he shot…

  • 10:50:32

    REHMYes.

  • 10:50:32

    AUSTIN-HILLERY…an individual.

  • 10:50:33

    REHMAbsolutely.

  • 10:50:33

    AUSTIN-HILLERYHe shot Michael Brown.

  • 10:50:34

    REHMAbsolutely.

  • 10:50:35

    AUSTIN-HILLERYIf you or I shot an individual here on Connecticut Avenue, in Washington, where we now sit, you or I would be arrested. And then an investigation would ensue, questions would be asked. That is a different treatment than what has happened in this respect. And that's part of what people are angry about.

  • 10:50:52

    REHMBecause he is a police officer and because we do not know the exact circumstances under which it happened, I think we have to be careful to say that. David Harris?

  • 10:51:09

    HARRISYeah, that's right, Diane. I think you have to make sure that you understand that unlike civilians, police officers have a right to use lawful and reasonable force to do their jobs. Now, I am not judging what happened in Michael Brown's case because I don't know. I don't think any of us know yet. But you cannot discount the fact, when you say he hasn't been arrested, that he has a right, in certain circumstances, an obligation to use force.

  • 10:51:40

    HARRISI'm not saying it was justified, but in order to know whether he should be arrested and he has exceeded his privilege to use force, you have to do the investigation first. What's happening is that people are so angry because of years of mistreatment that many folks on the ground are prepared to go ahead and judge right away because this fits with their prior experience. That, I think, is understandable, but it is a separate issue from how maybe the media covers or we can think of it in moments of calm reflection.

  • 10:52:13

    REHMPaul Butler, what would justice look like to you in this case?

  • 10:52:20

    BUTLERJustice would require two investigations in which the folks, the citizens of Ferguson and the United States could have confidence in. So one, this local investigation, you know. African-Americans aren't just more likely to be victims of police excessive use of force. Blacks are also more likely to be charged with a crime. So more than anyone else, they want a fair process. They want due process. And I think everyone wants Officer Wilson to have a fair shake.

  • 10:52:50

    BUTLERBut fair shake, again, as Nicole says, mean treating him the way that African-Americans get treated, which means he'll be investigated thoroughly. If he did it, then he should be charged. If he didn't do it or if he has a -- if it was a legitimate use of force, then he should not be charged. And then finally, the federal investigation. And that just can't be lip service from the attorney general. After the George Zimmerman verdict there was, you know, concern.

  • 10:53:16

    BUTLERWhat's going to happen now? A lot of people thought that not guilty verdict was not in the -- was inconsistent with the law. Attorney General Holder said, you know, what? There's going to be a federal civil rights investigation. Well, what happened to that? We haven't heard squat about that since then. So we can't afford to drop the ball here.

  • 10:53:33

    REHMAnd you're listening to "The Diane Rehm Show." Paul Butler, have you, as an African-American man, ever been arrested or harassed by police or charged with something?

  • 10:53:53

    BUTLERIs this an all-day show? Because I could go on and on. I mean just the most startling example or one of the most dramatic was when I was walking home from work one day in my beautiful neighborhood in D.C., not so far from here. Cops started playing this cat and mouse game with me, where they would pull up to me -- pull up close to me. And finally I just stopped and said, "Guys, what's going on?"

  • 10:54:13

    BUTLERAnd they said, "Do you live around here?" And I say, "Do I have to tell you that? I can walk in the public streets if I -- even if I don't." And they get this look, like, okay, we got a smart one on our hands. So they basically just followed me to -- when I get near my house and they say, you know, "Why are you stopping here?" I say, "That's my house." They say, "No, it isn't." Then they say, "If that's your house, go inside."

  • 10:54:32

    BUTLERAnd I said, "You know what? I'm not going to go inside. I'm a lawyer. I know my rights." And they said, "We're going to sit here until you do." So I went and sat on my porch, joined by now four metropolitan police department officers. And we all sat there. Finally they called a sergeant, who I'm going to say is an African-American woman. She came. She said, "This is ridiculous. Just go talk to the neighbors." They got -- went and talked to the neighbor. The neighbor said, "Yeah, he really does live there." And then they left.

  • 10:55:00

    REHMAnd how did you feel afterwards?

  • 10:55:05

    BUTLERWell, the way that I get mad as a scholar is to write an article. So I wrote an article that said that, you know, this reminded me of when you were a black man in South Carolina in 1850. And you had to carry a sign or a card that said whether you were slave or free. And that's what I felt like with those officers, that I had to justify my presence in my own neighborhood.

  • 10:55:29

    REHMDid you have any legal recourse as a result of that kind of -- I would have to call it harassment?

  • 10:55:41

    BUTLERI didn't. Because what the law would say is that the police were doing their jobs. Technically, they didn't stop me. Technically, they encountered me because they didn't restrict my movements. And so they have the right to just watch me. They have the right to put me under surveillance. So, you know, this is an area where the law doesn't cover a lot of the kinds of harassment and unpleasantries that people of color experience with the police.

  • 10:56:07

    REHMPeter Baker, have you ever heard of a white man being stopped for walking in his neighborhood?

  • 10:56:15

    BAKERNo. It's hard to -- well, it's hard to imagine a similar circumstance that Paul's just described. You know…

  • 10:56:23

    REHMWe all should take note of it.

  • 10:56:25

    BAKERAbsolutely.

  • 10:56:26

    REHMWe all should take note of it.

  • 10:56:28

    BAKERAbsolutely.

  • 10:56:28

    REHMIt's just an extraordinary story. And on behalf of the citizens of this city, I personally would like to apologize to you for that event.

  • 10:56:45

    BUTLERI appreciate that, Diane. That means a lot.

  • 10:56:46

    REHMOutrageous.

  • 10:56:47

    BUTLERThank you.

  • 10:56:48

    REHMPaul Butler, professor at Georgetown University's School of Law, Peter Baker, reporter for the New York Times, David Harris, professor of law at the University of Pittsburgh, Nicole Austin-Hillery, of the Brennan Center for Justice at New York University's School of Law. Thank you all for being here.

  • 10:57:13

    HARRISPleasure, Diane.

  • 10:57:14

    BAKERThank you.

  • 10:57:14

    AUSTIN-HILLERYYou're welcome, Diane. Thank you for having us.

  • 10:57:15

    BUTLERThanks for having us.

  • 10:57:16

    REHMAnd thank you for listening. I'm Diane Rehm.

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