Demonstrators block traffic as they protest in front of the Ferguson police department on November 24, 2014 in Ferguson, Missouri. A St. Louis County grand jury has decided to not indict Ferguson police Officer Darren Wilson in the shooting of Michael Brown.

Demonstrators block traffic as they protest in front of the Ferguson police department on November 24, 2014 in Ferguson, Missouri. A St. Louis County grand jury has decided to not indict Ferguson police Officer Darren Wilson in the shooting of Michael Brown.

After months of tension, a St. Louis County grand jury finally rendered its decision: No indictment for Darren Wilson in the fatal shooting of an unarmed black teenager. The white Ferguson, Missouri police officer testified that he feared for his life before the shooting. But Michael Brown’s family released a statement saying they were profoundly disappointed in the ruling. President Barack Obama urged protesters to stay peaceful and police to exercise restraint. In cities around the country, most did. But in Ferguson, reaction was swift and turbulent. Diane and her guests discuss what’s next in the national conversation about race and police interaction.

Guests

  • Ronald Hosko president, Law Enforcement Legal Defense Fund; former Assistant Director of the FBI's Criminal Investigative Division
  • Julie Bosman reporter, The New York Times
  • Sherrilyn Ifill president and director-counsel, NAACP Legal Defense Fund
  • Walter Olson senior fellow, the Cato Institute Center for Constitutional Studies.
  • Andrew Ferguson associate professor of law, University of the District of Columbia School of Law; former supervising attorney at the Public Defender Service for the District of Columbia. He is the author of "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action."

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Reaction to a St. Louis grand jury's decision not to indict police officer Darren Wilson in the shooting death of Michael Brown was loud and mostly peaceful in cities around the country, but in Ferguson, Missouri, protestors and police clashed during a night of looting and violence.

  • 10:07:18

    MS. DIANE REHMJoining me to talk about reaction to the grand jury ruling from protesters, civil rights groups and law enforcement, Andrew Ferguson of the District of Columbia School of Law and Walter Olsen of the Cato Institute. Joining us by phone from his office in Virginia, Ronald Hosko of the Law Enforcement Legal Defense Fund.

  • 10:07:44

    MS. DIANE REHMAnd joining us shortly by phone from New York, Sherrilyn Ifill of the NAACP. But first, joining me by phone from Ferguson, Missouri, Julie Bosman. She's a reporter with The New York Times. Thanks for joining us, Julie, after, what I gather, has been a very long night. Tell us what things look like this morning.

  • 10:08:09

    MS. JULIE BOSMANWell, I think this morning people in St. Louis and the area seem to be just waking up and in a state and wondering how the preparations that were so careful and so prolonged for the last few months seem to have crumbled very quickly. And I think you had the twin pillars of the police and the protestors and both groups seemed determined to do it right this time.

  • 10:08:38

    MS. JULIE BOSMANIn August, of course, you had some violence, some looting and everyone seemed to know that there was going to this immense response from the protestors and the police trained very extensively. They talked about how they were going to, you know, separate the people who were determined to be violent from the people who are determined to exercise their first amendment rights.

  • 10:09:07

    MS. JULIE BOSMANAnd the protestors said that they were going to exercise, you know, civil disobedience. They were going to do what they called direct actions, like blocking the streets. But they insisted that there was going to be no looting, no burning and what we saw last night was so much more extreme than what happened in August.

  • 10:09:29

    REHMIndeed. I heard the St. Louis County police chief, Jon Belmar, say the night's damage have been far worse than any of the nights of unrest that followed the shooting in August. So I gather members of the National Guard, additional members of the National Guard were called into Ferguson. Were they able to quiet the situation?

  • 10:10:05

    BOSMANThey did not appear to do what a lot of people here expected them to do, which was provide security for businesses, provide security for, you know, a lot of public buildings. You know, when you looked on West Florissant Avenue last night, which was, of course, where the main corridor of protests happened in August, there was very little police presence at all at certain point of the night.

  • 10:10:39

    BOSMANYou know, we had several reporters on the scene on West Florissant and, you know, what they saw was just utter chaos. You could see on the images on TV people, you know, taking baseball bats and breaking down windows and freely looting and I think that a lot of people, Diane, are wondering this morning, well, where was the National Guard and where was the -- we've heard so much about the unified command, which is the, you know, highway patrol, the St. Louis County police which has really been directing a lot of security here.

  • 10:11:19

    BOSMANAnd it seemed to be a free-for-all so I think everyone is just wondering, you know, what happened and where were the police when this was happening.

  • 10:11:30

    REHMSure. And Julie, is there any explanation being given by the chief of police as to why that unified force was not present and preventing that kind of looting and disruption to go on?

  • 10:11:51

    BOSMANWell, the people that we've spoken to who, you know, are in law enforcement have, you know, they seem to be in a very disappointed by what happened. They, you know, certainly this is not the way that they wanted things to go last night. And on the protestors side, you know, that's really not the way that a lot of people wanted to go. But I think what we saw is that there were a lot of elements of, you know, there are a lot of very organized protest groups, but they can't control everyone and there seemed to be quite a few people who were, you know, expressing their anger or just, you know, taking advantage of the opportunity.

  • 10:12:34

    REHMIs there any way for you, as an outsider, as a reporter for The New York Times, to determine whether those protestors were from Ferguson, from the St. Louis area or from outside?

  • 10:12:56

    BOSMANWe're still trying to figure that out. You know, the county police have released the numbers of arrest. We're still getting a firm grip on that, but we're waiting to see, you know, where a lot of these people were from. I think that, you know, in the passing weeks, there've been nightly protests. They've been small and they've mostly been limited to, you know, civil disobedience kind of acts like, you know, sitting in the street.

  • 10:13:25

    BOSMANAnd there've been, you know, small numbers of arrests. And very often, those people are from out of town and from outside of the St. Louis area. One question that keeps coming up was the St. Louis County prosecutor Robert McCulloch needlessly reckless by announcing the decision at night?

  • 10:13:51

    BOSMANIt's a great question. I think that, you know, when you look at what happened yesterday, there was so much planning and everything that people -- the way that people wanted this to go was that it would be announced in the morning. There was certainly a lot of expectation that it would be announced at a calm time. People talked about announcing it on a Sunday morning.

  • 10:14:14

    BOSMANAnd there was just a lot of shock as the day progressed yesterday when we realized that not only was this promised 24-hour notice not going to happen, but the Brown family, which, you know, had been told for weeks that they were going to be told in advance, they learned of the news, you know, on CNN or MSNBC. So they did not receive the promise of notice. And then, of course, you have Robert McCulloch, the county prosecutor, announcing it at almost 9 o'clock p.m. St. Louis time and essentially turning the announcement into a primetime television event, which is, you know, made a lot of people here cringe.

  • 10:15:01

    BOSMANAnd when the governor, Jay Nixon, was asked about that yesterday, why is the country prosecutor announcing this so late at night, he said, well, it's the county prosecutor's decision. So it seems like the governor, who a lot of people have said has been very absent in the planning and the coordination of the response here, he seemed to have no control over what the county prosecutor was doing, which is a pretty surprising and, a lot of people are saying, irresponsible thing.

  • 10:15:31

    REHMHave you had an opportunity to talk with the county prosecutor himself?

  • 10:15:38

    BOSMANI have not. I mean, I was there at that press conference last night when he took a few questions, but he has not made himself available for interviews and he hasn't explained his decision for announcing this decision so late at night and, you know, seeming, to many people, insensitive in the way that he delivered the message last night.

  • 10:16:01

    REHMWhat kinds of questions did he actually respond to?

  • 10:16:08

    BOSMANHe responded to, you know, a handful of questions about procedural things, questions about the makeup of the grand jury, you know, some of the questions he said that he couldn't answer. But there has just been so many things that are unusual about this grand jury and the way that it was run. We spent most of the night last night combing through grand jury testimony, which was released last night and which is extremely unusual.

  • 10:16:37

    BOSMANBut one thing that people keep saying is that this grand jury, and we forget this is just a grand jury, this was not a trial, but these 12 people on the grand jury were expected to, you know, go through a mountain of evidence, hear from so many witnesses.

  • 10:16:53

    REHMSixty, I gather.

  • 10:16:55

    BOSMANSixty, yes. And meet for 25 days in total. So that is extremely unusual.

  • 10:17:02

    REHMSo from your perspective, having gone through the testimony, were you surprised at this decision?

  • 10:17:16

    BOSMANI was not surprised. I think it was very difficult to tell, until yesterday, what those grand jurors were going to do, but it did seem like when you read what Darren Wilson said, when you read his testimony, he was a compelling witness. He told a very coherent, a very consistent story about what happened on August 9th when he encountered Michael Brown on Canfield Drive. There is, included in that, all the material that Robert McCulloch made available are interviews that Darren Wilson, you know, was involved in.

  • 10:18:01

    BOSMANHe was interviewed by the county police, and told...

  • 10:18:03

    REHMAll right. And Julie, I'm afraid we'll have to end it there. Thank you so much. Julie Bosman of The New York Times.

  • 10:20:02

    REHMAnd welcome back as we talk about the aftermath of the grand jury announcement not to indict officer Darren Wilson in the shooting of Michael Brown in Ferguson, Mo. Here in the studio, Andrew Ferguson. He's professor of law at the University of the District of Columbia. Walter Olson is here. He's senior fellow at the Cato Institute Center for Constitution Studies. Joining us from his office in Alexandria, Va., Ron Hosko. He's president of the Law Enforcement Legal Defense Fund. And from her office in New York, Sherrilyn Ifill, president and director-counsel with the NAACP Legal Defense Fund.

  • 10:21:06

    REHMWe've had an email from Adrian, actually it's a Tweet saying, "We need to remember that the St. Louis area schools petitioned for the announcement resulting in the grand jury's decision to be made after 5:00 pm. This would allow people to be safe in their homes. I wonder, Andrew Ferguson, what your reaction was when you heard the grand jury's decision.

  • 10:21:46

    MR. ANDREW FERGUSONWell, I think two things that need to be remembered. The first is that what the grand jurors did in this case is pretty common and commendable. But what the prosecuting authority did in this case is unusual and does raise some questions. You have to remember that the grand jurors were 12 citizens who were picked long before the Michael Brown case began.

  • 10:22:05

    REHMIndeed they had served on the grand jury since months before.

  • 10:22:11

    FERGUSONAnd they continued their service to do an incredibly difficult job. If anyone wants to look at the 24 volumes of documents and the witnesses that they had to go through, I think you will say that these jurors did what we expect every juror to do. And they should be commended and they should be supported as a difficult job.

  • 10:22:30

    REHMI know you have read portions of the testimony that the grand jury heard from more than 60 witnesses. What did you glean from that testimony?

  • 10:22:45

    FERGUSONI think that if you read and listen and read the testimony, you will understand why the grand jury came to its decision in that the -- Darren Wilson presents a very compelling narrative of what happened. But what is different and what is a difficult call is that it was done without cross examination. This wasn't a trial. It was the direct examination. And so while reading his testimony is compelling, as a former defense lawyer I was wondering what the cross examination would be because I think that there would've been holes poked into it.

  • 10:23:18

    FERGUSONAnd I think that's part of the frustration here. All of this is beyond the tragic shooting of one person. It's about a narrative of distrust in the criminal justice system.

  • 10:23:27

    REHMWalter Olson, what was your reaction to this incident going directly to a grand jury as opposed to going to a jury trial?

  • 10:23:43

    MR. WALTER OLSONWell, use of the grand jury is pretty typical for this sort of case. And that's one of the problems is because grand jury consideration is often just a formality when you're talking about ordinary sorts of indictments. There what the prosecutor says is almost always going to be gone along with by the grand jury. But in cases of police misconduct, you've got this special category in which the prosecutor may not always be steering the jury toward a conclusion of indictment.

  • 10:24:16

    REHMIndeed Mr. McCulloch apparently gave them every bit of evidence possible.

  • 10:24:24

    OLSONHe gave them a lot of evidence and certainly including the evidence, as Andrew says, that made a compelling case for Officer Wilson's defense. Things would be very different if it were someone accused of shooting a police officer who were brought before a grand jury.

  • 10:24:41

    OLSONAnd, you know, St. Louis is not the only place to use this mechanism and recently it was revealed that Dallas, for example, had brought 81 police misconduct or police shooting cases to a grand jury. And only one had resulted in an indictment. A very striking statistic.

  • 10:24:57

    REHMSherrilyn Ifill, what was your reaction?

  • 10:25:01

    MS. SHERRILYN IFILLWell, my reaction of course was disappointment but not surprised. Disappointed first and foremost with the decision of the prosecutor to announce this at night and not to announce it in the day and not to provide the kind of advance notice that might have stemmed some of the reaction. But I wanted to comment on just the last remark. I think it's impossible to imagine that if this had been someone who had shot a police officer that the presentation to the grand jury would have been the same way that it was done in this case.

  • 10:25:32

    MS. SHERRILYN IFILLEverything about what was presented to the grand jury and the way it was presented was not in the posture of a prosecutor presenting enough evidence to the grand jury to indict, which is usually the prosecutor's posture when the prosecutor has the will to produce an indictment from the grand jury. That's why we say the prosecutor in the grand jury can get an indictment for a ham sandwich. We say that because it's in the control of the prosecutor how to present the evidence.

  • 10:25:58

    MS. SHERRILYN IFILLAnd the standard is just probable cause which means that there are questions raised that would allow you to arrest the officer and go to trial where the kind of cross examination that we've just been talking about would happen and we would have a rigorous challenge to the evidence. I think anybody reading even the testimony of Darren Wilson could imagine a cross examination that might be devastating to the story that he was presenting, and yet that never happened.

  • 10:26:22

    MS. SHERRILYN IFILLSo a lot of this depended on the will of this particular prosecutor. And I think if you look at the grand jury transcripts, it's quite clear that there was not a will here to receive an indictment from this grand jury.

  • 10:26:34

    REHMAll right. Ron Hosko, as president of the Law Enforcement Legal Defense Fund, what is your reaction to the manner in which this was presented to the grand jury?

  • 10:26:50

    MR. RONALD HOSKOI'm not surprised by it, Diane. I disagree with the opinions that suggest that really the job of the prosecutor is to go into the grand jury and present evidence and come out with an indictment. I think in this case, and it's quite evidence from the result, that there was substantial evidence that backed Darren Wilson's view of events. In fact, two of your panelists have already said that he was a compelling coherent witness.

  • 10:27:24

    MR. RONALD HOSKOAnd so I think it's a job of the prosecutor to go in there with his eyes wide open and assess and understand what he has, and that all this evidence went in. And we've heard reports already how some of the witnesses fabricated their story, changed their story, in effect committed perjury in the grand jury. Even though those are witness versions that might've contributed to the narrative that we've had for the last three months, they -- that the right result was returned, that there was not substantial evidence. And so the prosecutor shouldn't be in there trying to get an indictment.

  • 10:28:06

    REHMCan you say more, Andrew Ferguson, about the way those witnesses presented testimony?

  • 10:28:15

    FERGUSONWell, just first, you know, the standard of probably cause is not substantial evidence. It's simply adequate grounds to exist to proceed the case to trial. And we need to remember that. I think this comes more from the press conference and really reading the statements of the witnesses, but clearly there was conflicting testimony about what happened.

  • 10:28:33

    REHMGive me an example.

  • 10:28:34

    FERGUSONSo there are witnesses who testified that Mr. Brown was charging the officer. There were witnesses that said he wasn't, that didn't happen. But that type of conflicting evidence is exactly why you have trials, right, is so that all of that evidence can come out. And it really isn't up to the grand jurors to make those credible determinations beyond a reasonable doubt.

  • 10:28:56

    FERGUSONI actually think that if this case had gone to trial, Officer Wilson would be acquitted because there's reason to doubt under the very demanding standard of beyond a reasonable doubt, but not under probable cause.

  • 10:29:06

    REHMBut now, Ron Hosko, what about that kind of cross examination that would take place in an ordinary jury trial. Why didn't this case go in that direction?

  • 10:29:24

    HOSKOThat cross examination could go to support a witness' view and could gut a witness' view or their testimony. Quite obviously both the prosecutor and the grand jurors in this case made some credibility determinations. I don't know that you can determine that or understand that from reading a document, reading a transcript. But my belief would be that those grand jurors made credibility determinations in the four corners of the grand jury and came away with, you know, the lack of evidence to support an indictment period.

  • 10:30:05

    REHMAll right. Walter Olson.

  • 10:30:06

    OLSONThey made those credibility determinations without hearing the strongest type of legal case that could be made by someone on the opposite side. And that's why the process leaves us so unsatisfied. You know, McCulloch was completely right to say that there was conflicting eyewitness testimony. The other part of that picture is that that's true in almost any case of this sort. Studies have been done. Eyewitness testimony is very frequently flawed even when it's given in complete good faith. But that does not necessarily keep the case from going forward at all. It goes to what an eventual jury decides to believe.

  • 10:30:41

    REHMSherrilyn, you wanted to jump in.

  • 10:30:44

    IFILLWell, I just think that that's proving, you know, I think those comments are so well taken. The mere fact that there is conflicting testimony, the mere fact that there is evidence that frankly, you know, really was not complete. There are real questions about how far away Mike Brown's body was from the car. The police officers say 35' and it looked like it was actually 148'. They didn't measure. They didn't take photos of Mike Brown's body, but they took photos of Darren Wilson. Darren Wilson did not appear to be injured in the photos.

  • 10:31:11

    IFILLI mean, there were all kinds of pieces of this that it, seemed to me, raised questions. And that's the point of the grand jury proceedings. The point of the grand jury proceeding is to determine whether there's probably cause, whether there are enough questions to bring this case to trial. And I think it's quite clear that in this case there were.

  • 10:31:27

    IFILLAnd that's why I too am not actually blaming the grand jurors. I'm really talking about the prosecutor who exerts the power and the authority in that space to suggest what should be the outcome. Even presenting all these various charges to the grand jury without himself recommending a particular charge, essentially advocating, in my view, his responsibility to bring that case forward and to organize the case for the grand jury to receive this evidence dump that he called, I think that he thinks makes the process better.

  • 10:32:01

    IFILLAnd, in fact, as a manipulation of the process and the result of that manipulation is precisely what we saw in terms of the grand jury's conclusion. I do not think that this prosecutor's actions are profile encouraged, they are not orthodox. I cannot imagine that this is the action that he will take for individuals accused of drug crimes in Ferguson or in St. Louis County. I think he will take a very different path in terms of how he proceeds with a grand jury, if he chooses to proceed with a grand jury. So...

  • 10:32:26

    REHMRon Hosko...

  • 10:32:26

    IFILL...we can't pretend this is a normal case. And we also shouldn't lose sight of the fact that it's the prosecutor's job to recognize that when a police officer testifies, as Darren Wilson did in this case, as was his right to testify, it's a thumb on the scale that most citizens, particularly without that cross examination, are going to be likely to believe the police officer. So that's why the people say Darren Wilson told a credible story.

  • 10:32:51

    IFILLI mean, the credible story he told is credible because he's a police officer and he gets that advantage. And frankly, Diane, I'm going to go there. It's credible because of the reality of implicit bias. When a white police officer says, I shot a young man twice and says that he seemed to bulk up and get bigger after I shot him, when he says, I felt like I was a five-year-old compared to Mike Brown, but the officer himself is 6'4" and 210 pounds, those are statements that can only be believed and understood because of tropes that we all have internally. Not just white people but that we all have internally about black criminality and about black people.

  • 10:33:31

    IFILLAnd to pretend that there is not a racial bias element that enters into how people perceived those kinds of words that Darren Wilson provided in the story that everyone says is so credible and so moving to the grand jury is to deny the reality of what is happening and to deny the reality of why so many people are angry and demanding that we really address this issue of implicit bias. That prosecutors need training in it, police officers need training in it. It needs to be aired before juries when they are empanelled.

  • 10:34:04

    REHMAll right. And you're listening to "The Diane Rehm Show." Ron Hosko, do you want to respond?

  • 10:34:13

    HOSKOI think that bias within law enforcement, it certainly is a reality and certainly in our world perception becomes reality in our discussions. However, one of the things I'm disappointed in in the entire dialogue is the lack of discussion about personal responsibility. No one, you know, for three months has brought up the -- any commentary about a young black man attacking a police officer on the street in his car. And I'm trying to understand the logic of anyone engaging in that sort of activity.

  • 10:34:55

    HOSKOOr we've -- it's been reported by multiple witnesses this man who knows the police officer's armed, they struggle for his gun inside the car, turns and charges the police officer. I'm trying to put that into context, and that's apart from Mr. Brown's involvement in the robbery, the strong-arm robbery that had just occurred. So where is the personal responsibility? Where the discussion about personal responsibility? And that extends to the looting that's going on today.

  • 10:35:26

    REHMAll right.

  • 10:35:27

    IFILLCan I comment on this, Diane?

  • 10:35:27

    REHMAnd I want to turn to you, Andrew Ferguson, and get you, if you would, to outline what you believe is the proper use of a grand jury as opposed to how you see this particular case.

  • 10:35:46

    FERGUSONWell, I think it's a complicated question because if you go back to the history of grand juries in America, it was more like what we saw today where grand jurors would sort of stand and protect citizens from the prosecutorial abuse. And so more power is given to citizen grand jurors.

  • 10:36:00

    FERGUSONHowever, over time prosecutors have used grand jurors to essentially just meet the bare minimum of probably cause. The Supreme Court has gone on record to say, it doesn't have to be adversarial. It doesn't have to have confrontation. You don't even have to put in exculpatory evidence. It's simply a threshold mechanism to move forward.

  • 10:36:17

    FERGUSONSo I think the concern and the unfairness here is it seems that Darren Wilson got the gold plated grand jury, where most Americans get the aluminum foil version or something, maybe tin but nothing gold plated. And so it plays into a narrative unfairness and racial unfairness that is very real in Ferguson and other places that makes this case strong. If he -- if Mr. McCulloch decides to do his grand juries like this in every case, that'd be a wonderful change in America, but it's not going to happen that way.

  • 10:36:46

    REHMAnd what are the options now for Michael Brown's family, Mr. Olson?

  • 10:36:53

    OLSONThey're not very attractive options. There is the possibility of a civil suit. There's the possibility that the federal government, they're looking at the specific case. And they've already sent out hints that they are not going to do a second prosecution. Or more broadly through the pattern and practice investigation of the department, which might lead to forward-looking reforms, but probably not to a change in this case.

  • 10:37:15

    REHMAll right. Short break here. And when we come back, I'd like to hear your thoughts on the case in Ferguson, Mo. and the grand jury's decision. Stay with us.

  • 10:40:01

    REHMAnd welcome back. It's time to open the phones, 800-433-8850. First to Dallas, Texas. Hi there, Mark. You're on the air.

  • 10:40:16

    MARKGood morning, Diane. Thank you for allowing me to offer what's maybe a counterintuitive comment to the reaction on the part of the people of Ferguson to the announcement. I think -- and I'm an average white guy so I can't speak for the black community. But it seems to me that if you are a black person in this country, it's pretty much inarguable that the system does not work for you. I mean, unarmed black children are shot and killed by police officers fairly routinely.

  • 10:40:51

    MARKAnd the police officer's never indicted. So in the face of sort of systemic violence, it does not surprise me at all. And I'm not even willing to condemn it -- that people will react the same way in situations like the one in Ferguson.

  • 10:41:09

    REHMSherrilyn Ifill?

  • 10:41:11

    IFILLIn no way do I excuse the destruction of property or any of the crimes that were committed last night. I also, in no way excuse the conduct of this prosecutor by announcing this verdict in the evening, at a time, in my view, designed to produce the kind of result that it produced. The governor chose to preemptively -- 10 days before this verdict -- issue a state of emergency. And yet, throughout the night, police did not engage in dealing with criminality because the people that you saw out there engaging in that conduct are not the people who have been protesting over the past six weeks.

  • 10:41:49

    IFILLAnd in fact, we were hearing from people all night saying, I don't even recognize these people. These are not the people. When you have a situation like this, when you have this kind of anger, you are going to have an element that, of course, is going to be angry enough to commit crimes. But what I am so distressed about is that the decision to make this announcement last night insured that on the front page of every paper this morning the top story was about protests and looting and gunfire and burning, and not about the fact that this indictment didn't happen.

  • 10:42:19

    IFILLNot about the fact that just in the past six months we have seen -- in some cases, actually seen the video of police officers killing unarmed black men, assaulting unarmed black women.

  • 10:42:30

    REHMAll right.

  • 10:42:30

    IFILLShooting unarmed black children. That's what we should be talking about.

  • 10:42:33

    REHMWalter Olson?

  • 10:42:34

    OLSONI do think the choice to go to nearly 9:00 o'clock at night is -- was a terrible one. You know, one of the very first things the law learned about riots, way back in medieval England is that night is different from day. And that night is more dangerous for disorder. The system is broken, not just on race though. I would point out that you have the same problems of police on accountability where the police force is of the same race as the population. You have it in parts of the country with every different ethnic composition. This is a problem that we all need to face, beyond America's race problem.

  • 10:43:16

    IFILLI agree that this is a problem of…

  • 10:43:17

    REHMAll right. Let's go to Amy, who's in St. Louis, Mo. Hi there, Amy.

  • 10:43:24

    AMYHi. I was four minutes away from the riots that were happening at Grand and Arsenal. And you could hear the electricity in the air and it was not positive. Even though they kept saying on all the news channels that people on Grand and Arsenal were peaceful, it wasn't. They were yelling so much profanity as the cars were crying out for people to go home. And you could even see the choppers flying overhead. I was sitting in my apartment, all the lights off, terrified.

  • 10:44:01

    AMYAnd I think that I had every right to be terrified, due to that fact that all the news sources were focusing on the looting and the fires and everything else, when I feel like they could have probably shined a better light, perhaps, in hopes to not egg-on the looters. Because I felt like they were egging on the looters with their coverage last night.

  • 10:44:27

    REHMAndrew?

  • 10:44:28

    FERGUSONYou know, I think there's an additional tragedy here. Like, if you can picture that moment right before the announcement when there were all those people waiting to see if the rule of law would work, they weren't looting. They weren't rioting. They were waiting to see if the justice system would work. And right there was that faith that this is the system based on the rule of law. If we follow the rules, things will work.

  • 10:44:48

    FERGUSONAnd then they were disappointed and then the rage happened. And you certainly can't excuse that. But what's interesting is that there was a belief. Even in a system where there has been a repeated pattern of perhaps reason to distrust the system, all those people were waiting to see if the grand jurors would act. And then there was this heightened tension. And then the announcement. And then, as you saw, chaos.

  • 10:45:09

    REHMRon Hosko, if this had gone directly to a jury trial, do you think the reaction, number one, would have been any different, number two, that the decision of the jury would have been any different than that coming from the grand jury?

  • 10:45:33

    HOSKOI think a jury, if it had gone to trial, would have quickly acquitted the officer based on what we're seeing in these transcripts. And I think the reaction would have been the same. That we have folks among us who if, you know, the old adage of attorneys, if you -- if the facts are on your side, you know, if they're not on your side, argue the law. If the laws not on your side, argue the facts. Here I don't think the facts or the law were on the side of an indictment or a conviction.

  • 10:46:06

    HOSKOAnd I think we would have had a similar result. That we would have had the same -- very many, the same voices, the same people agitating behind the scenes, engaging in the mayhem that we've sadly seen in Ferguson. I feel badly for the business owners and the residents of that area, the victims whose businesses have gone up in flames, who have been looted, some probably repeatedly. They're victims in this, too.

  • 10:46:36

    REHMSherrilyn Ifill, what's your reaction? What might the situation have been had this case gone directly to a jury trial?

  • 10:46:50

    IFILLWell, I think we should be looking at Sanford, Fla., where George Zimmerman was tried and acquitted of killing Trayvon Martin. There was no violence, you'll recall, in that case that the community had to come out in protest simply to have George Zimmerman arrested. There was no will and no intention even to arrest him after he killed Trayvon Martin. So the protests of the community have been critically important in compelling the justice system to move.

  • 10:47:19

    IFILLAnd the comments earlier are quite right about, frankly, the belief and the willingness of African Americans to believe in the legal system. I run an organization that's used the law for 75 years to try and fight for equality and justice. We continue to believe that that is the appropriate avenue. And yet, time and time again in too many instances -- not all instances, but in too many instances, it fails us.

  • 10:47:43

    IFILLAnd so I agree that if the trial had happened it's likely that Darren Wilson would have been acquitted. Not because of anything I read in that grand jury testimony, but because of the track record of police officers who, on the rare occasions in which they are tried for killing unarmed African Americans, are almost always acquitted. You remember the case of Amadou Diallo who was shot 41 times. Those officers were acquitted.

  • 10:48:06

    IFILLSo the law -- the state of the law, the state of the case law as the Supreme Court's interpreted it is not on our side. And the willingness to believe police officers, particularly in the cauldron of racially integrated encounters between young African American men in particular, but African American, whether they're men, women, young or old, and police officers always errs on the side of police officers.

  • 10:48:29

    REHMAll right.

  • 10:48:29

    IFILLAnd that's why I say we have to confront the issue of bias, and implicit bias and the ways in which we even sift what we hear, the evidence that we hear, the what we see as eyewitnesses through the racial lens. People were terrified this morning. I heard the woman talking about being terrified last night and I'm very sympathetic to that. But all over America today black mothers and fathers are terrified for their sons and having renewed conversations with their sons about encounters with police officers. We have a lot of terror…

  • 10:48:58

    REHMAnd what would you say, Andrew Ferguson, to the idea that every police officer in this country should be equipped with a camera?

  • 10:49:11

    FERGUSONI think it's an improvement. I think there are obviously a lot of technical problems and that there's just a lot of tape that would be around that people were being filmed, a lot of privacy concerns. But you would have a bit more information when these tragedies happen, to be able to determine what actually happened and what should happen. And I think it's a step forward. It's not a panacea, but it's a step forward in the right direction to have these kinds of technological surveillance of polices and encounters.

  • 10:49:37

    REHMAll right. To Malcolm, he's in Durham, N.C. You're on the air.

  • 10:49:44

    MALCOLMHello, Diane.

  • 10:49:45

    REHMHi.

  • 10:49:45

    MALCOLMLong-time listener, first time caller.

  • 10:49:47

    REHMThanks.

  • 10:49:47

    MALCOLMThanks for taking my call.

  • 10:49:48

    REHMGood.

  • 10:49:49

    MALCOLMJust one point that I wanted to make about the media, the mainstream media. When this happened you could not turn a TV or a radio on and not just be 24/7 about this story. About the same time there was a white felon -- or a guy committing a felony in Utah, unarmed, killed by a black officer. Mainstream media never picked it up. You had to dig to find that story. So I think the mainstream media is somewhat responsible for what's going on now.

  • 10:50:20

    REHMSherrilyn Ifill, what's your response to that?

  • 10:50:25

    IFILLI'm actually quite aware of that case. Somehow it managed to penetrate to me so somebody was covering it. I think that there are all kinds of problems with the way the mainstream media covers, you know, incidents of police shooting of unarmed individuals in particular. You know, you'll recall that when Michael Brown was killed, the mainstream media was not very interested in the story. He was killed on a Saturday afternoon. And if you were on social media and following it on Twitter, you knew what was happening.

  • 10:50:52

    IFILLBut there were a million tweets that were exchanged before there was one story in the mainstream media. And I don't think CNN ran a story until the Tuesday or the Wednesday after he was killed. So if we really want to drill down to what the mainstream media pays attention to, the idea that they are paying attention with tremendous intensity to these cases is quite shocking to me. Because this is not a new phenomenon. I could run down a list of so many instances of unarmed African Americans who have been killed and assaulted by police officers that your listeners have never heard of and that most people have never heard of.

  • 10:51:21

    IFILLWe're not talking today about the 12-year-old boy who was killed on the playground by police officers last weekend in Cleveland when he had a toy gun. So I don't think that, you know, at this point I'm perfectly willing to recognize that the mainstream media has had its limitations in this coverage and in coverage in general. But I don't think that coverage has erred on the side of it any way being sympathetic or being overly solicitous of the killings of unarmed African Americans.

  • 10:51:45

    REHMAll right. We have an email from Fred, in Maryland. He says, "It's unfair to conclude justice didn't work without hearing all the evidence. Black Americans are treated unjustly by the system, but it's wrong to conclude that therefore this officer should be indicted after the grand jury heard all the testimony." Andrew?

  • 10:52:15

    FERGUSONAnd as I begun I really don't think that the grand jury should be -- I don't think anything but positive affirmation should be given to these grand jurors who did their best with the law and the facts as given to them. And I think they should be respected. This decision should be respected. That's the way the process works. I think the tenor of the comments today was all about the larger process of the prosecutor, not necessarily what the grand jurors did.

  • 10:52:39

    FERGUSONAnd I think they should really be, you know, there are grand jurors all across America right now, who are doing a really hard job, sacrificing their job, sacrificing their lives -- not their lives, but sacrificing their abilities to live their lives in a normal way in order to make sure justice works. And I think they should be commended for that.

  • 10:52:54

    REHMWhat happens to Officer Darren Wilson now, Walter Olson?

  • 10:52:58

    OLSONWho knows? Because he wants to be an officer, presumably, on another police force. This story is going to last through most of his life. And the media, you know, Robert McCullough's presentation was a little bit comic last night in how much he blamed the media, when, you know, other things, obviously, were going on. And yet there was a kernel there -- social media is just being tried out in a sense here.

  • 10:53:31

    OLSONThis is among the first instances in which it forced an issue onto the front pages. And social media isn't perfect either, any more than the old media, because it set a narrative, which didn't conform very well to some of the forensics.

  • 10:53:39

    REHMAnd you're listening to "The Diane Rehm Show." And let's go to Lorraine, in Tampa, Fla. Hi, there. You're on the air.

  • 10:53:50

    LORRAINEHi, good morning, Diane.

  • 10:53:51

    REHMHi.

  • 10:53:53

    LORRAINEI just want to say that I agree with the prosecutor. I think the media enflamed public opinion by its constant appetite for something to report. And made a minority point of view, a majority point of view. I also want to say that Michael Brown may not have had a weapon in the sense that he did not carry a gun, but he used his body as a weapon. He used it -- his 6-foot-something, 300-pound frame as a weapon against the convenience store owner when he stole those cigars.

  • 10:54:19

    LORRAINEAnd he used it as a weapon against the police officer. And when -- any time you charge a police officer, you have to know that you're risking your life. And the last thing I'd like to say is why didn't Michael Brown's parents teach him how to obey the law? Why didn't they teach him not to go into a convenience store steal? Why didn't they teach him that was wrong? Why didn't they teach him to obey a police officer when he gives you an order? I don't doubt that, you know, young black men are victimized by the police in many cases, but I don't think this was one of them.

  • 10:54:49

    REHMSherrilyn?

  • 10:54:51

    IFILLI'm always so interested when I hear people say that last comment about why didn't his parents teach him because I've met Michael Brown's parents and I have no doubt that they did teach him, as parents all over America try to teach their children to do the right thing. And I think those of us who are parents know that our children learn from us, but they also do things that we would not necessarily approve of. They don't live perfect lives.

  • 10:55:15

    IFILLThe question is what happens to a white child when let's say at Pumpkin Fest or at a demonstration after the Seattle Seahawks win the Super Bowl or after the, you know, the World Series or after, you know, the University of Maryland wins its final football game and they're in the street and they're burning mattresses and so forth? What happens to that young white child who engages in that activity, which is illegal, which their parents would not approve of? They were taught better. They were raised in a nice home.

  • 10:55:43

    IFILLWhat happens to them? And then what happens to the African American child who maybe mouthed off or who maybe behaved in a way that his parents did not teach him? Until we get to a point in America where for an African American child to rebel or to engage in conduct that his parents would not approve of does not mean he gets a death sentence for either stealing cigarettes or even for mouthing off at a police officer, we will not be the country that we should be.

  • 10:56:07

    IFILLWe will be chopping down the promise of young people who, simply because they are young, white, black and every race, make decisions that are not perfect. But that doesn't mean that they should be killed. I hope we're not at a point in this country where we actually think that 19-year-olds should be executed for -- 18-year-olds, excuse me, should be executed for either stealing cigarettes, being unarmed and mouthing off at a police officer. If we do think that that's true, then we are in even more trouble than I thought.1

  • 10:56:36

    REHMSherrilyn Ifill, president and director of counsel with the NAACP Legal Defense Fund. Ron Hosko, president of the Law Enforcement Legal Defense Fund. Walter Olson of the CATO Institute. Andrew Ferguson of the University of District of Columbia, School of Law. Sad situation all around. I thank you for being here today.

  • 10:57:11

    OLSONThank you.

  • 10:57:12

    FERGUSONThank you.

  • 10:57:12

    IFILLThank you, Diane.

  • 10:57:12

    HOSKOThanks, Diane.

  • 10:57:13

    REHMAnd thanks for listening all. I'm Diane Rehm.

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