It speaks volumes about the anorexic state of liberal moral reasoning in today’s America that it has met the failure of a grand jury to indict Ferguson, Missouri, police officer Darren Wilson for the Aug. 9 killing of unarmed teenager Michael Brown with little more than a procedural shrug. All appearances to the contrary notwithstanding, the system has worked, liberals intone.
This should not come as any great surprise. Liberalism, in its current technocratic guise, doesn’t possess any strong moral vocabulary for describing — let alone condemning — procedural abuses, for the simple reason that its most ardent apostles don’t imagine them occurring. Hence our first African-American president — a classic managerial liberal whose bona fides were minted in the academy’s most hallowed cathedral of neoliberalism, the University of Chicago Law School — greeted the outrage of Wilson’s non-indictment with the bland assurance that our impersonal institutions of justice were all in fundamental working order.
“First and foremost, we are a nation built on the rule of law,” President Barack Obama said in his address to the nation following the Nov. 24 grand jury decision. Never mind that the legal proceedings in question had forestalled the most basic protections that safeguard such rule — the opportunity to mount a public inquiry into a police officer’s grave trespass against a private citizen. Instead it produced something of a parody of due process, via a highly irregular grand-jury proceeding relying mainly on the contradictory and implausible testimony of the would-be defendant.
Nevertheless, the president pressed on with his alternate-universe version of events. “We need to accept that this decision was the grand jury’s to make,” he announced — even though no one protesting was challenging the panel’s formal authority, any more than abolitionists or civil-rights activists had denied that the Supreme Court’s rulings in Dred Scott v. Sanford or Plessy v. Ferguson were the law of the land. What was in question, rather, was the actions of the grand jury, after its members had been prodded by St. Louis County Prosecutor Robert McCulloch, a notoriously cop-friendly DA, to contort the basic purpose of a grand-jury hearing out of all recognition. Grand juries are not empowered to settle the momentous question of guilt or innocence, or finer-grained matters of motive, opportunity and state of mind. They’re only charged with establishing probably cause for a trial to proceed — to indict, rather than to exonerate or convict, a prospective criminal defendant.
This was the howling, first-order procedural abuse that permitted all the other, kindred trespasses of this inquiry to disfigure the routine operations of the legal system in the killing of Michael Brown. Since they’re formal path-clearing inquiries, grand juries typically don’t hear the testimony of more than a handful of witnesses. McCulloch, by contrast, called 60 witnesses, who testified for more than 70 hours. Wilson alone testified without cross-examination for four hours — an unheard-of span of time for a prospective defendant, even in a police murder inquiry. Likewise, grand-jury proceedings in any criminal case rarely go beyond a day or two — but McCulloch kept this body empaneled for more than 100 days.
The benefits of vastly increasing the panel’s workload and elongating its tenure were plain enough. Most obviously, these maneuvers gave McCulloch the opportunity to shape the direction of the inquiry, and to elevate Wilson’s testimony over that of the many civilian witnesses who contradicted his account. Just as important, the protracted inquiry permitted a steady stream of leaks to reach the press during the proceedings — leaks that shored up Wilson’s version of the shooting, and put the lie to McCulloch’s whining complaint that media coverage had made the grand jury’s job much harder than it should have been.
Far more subtly, the more that the grand jury resembled a definitive criminal trial, the more witnesses felt intimidated as they testified before the panel. Prim liberals who return again and again to the soothing, talismanic invocation of the rule of law would do well to review witnesses’ statements about how they viewed this particular civic duty. “I’m shaking and I’m nervous right now and I’m scared, you know,” one witness said as she went on to explain that she had seen an altercation between Brown and Wilson through Wilson’s car window, and Brown shot as he ran away from Wilson. Another witness explained that she hadn’t initially come forward with her own testimony to the authorities because “I’ve seen the Ferguson police do some really awful things.” Small wonder that McCulloch himself urged jurors not to wear their jury badges outside the justice building in Clayton, Missouri, and counseled them that the presence of a construction site could further help them shield their anonymity.
These are not the actions of a dispassionate public official, motivated only to “separate fact from fiction,” as McCulloch declared in his likewise interminable and sententious press conference on Nov. 24 announcing the decision not to indict. They are, rather, the frantic efforts of an interested party focused intently on attaining a cop-clearing outcome. That they all technically fall within the ambit of McCulloch’s prosecutorial authority allows our solemn and sweeping obeisance to the rule of law to cover a multitude of crippling civic sins. The wan assurance that the system is humming smoothly along on all its procedural tracks allows liberal officialdom to overlook the blatant conflicts that all too often occupy the core of our racially polarized justice system.
What’s more, the totemic invocation of rule of law channels public attention into the reassuringly sanctimonious civic sport of deploring the genuinely deplorable outbreaks of rioting and vandalism that greeted the grandjury announcement in Ferguson. “As [the police] do their work in the coming days,” Obama said in his statement, “they need to work with the community, not against the community, to distinguish the handful of people who may use the grand jury’s decision as an excuse for violence — distinguish them from the vast majority who just want their voices heard around legitimate issues in terms of how their communities and law enforcement interact.”
Well, sure. But note how the vivid threat of violence in Obama’s telling contrasts with the trademark abstractions favored by conflict-averse liberal choreographers of an idealized civil peace. Protesters in Ferguson and elsewhere aren’t exercised over getting their voices heard around legitimate issues; they’re exasperated over the dodges and double-standards of a justice system that increasingly seems weighted against the value of black lives.
For all the eager prattle about the symbolic significance of Obama’s election in inaugurating a heroic postracial phase of American political life, it’s hard not to note how timorous and recursive the voice of liberal leadership has become under the urgent challenges that the debacle of Ferguson presents to its procedural civic catechism. Indeed, Hillary Clinton, the consensus Democratic front-runner for the presidency in 2016, has outdone Obama’s diffident rhetorical performance by maintaining a complete silence about the shameful events in Ferguson. Even when liberal political leaders of the civil rights era needed to be shamed into doing the right thing, they at least listened to what was being said. And eventually, they spoke up when it mattered most. Their successors, very much by contrast, profess to see no evil — and therefore can offer very few plausible civic goods.