THE BLOG
12/02/2014 04:56 pm ET Updated Feb 01, 2015

Jim Crow Justice--As Usual

Most white people brought up on the antiseptic version of American history think of racial injustice in the South (always in "the South," not anywhere else) as enacted by "the Klan" via lynching: black men dragged out of jail to be murdered. But the more constant version was entirely inside the law, and that's what we just saw again in Missouri, prosecutors going through the motions and cooking the books, so that they (and all those who cannot stand the notion that black lives matter) can say "see, the law has worked, now be silent."

In the southern states in the first half of the twentieth century, many white men--lynch mob leaders, killers, floggers, rapists--were tried for their violence against black children and adults. But virtually never were they convicted. In the 1940s, Governor Strom Thurmond, the arch-Dixiecrat of South Carolina, proclaimed his commitment to prosecuting lynchers, on more than one occasion sending in investigators to find the culprits. But juries ignored eyewitness testimony, and acquitted confessed lynchers in those and dozens of other cases. Emmett Till's murderers going scot-free is a famous example of a show-trial where the verdict was predictable.

But it's too easy to blame juries, and the racist defense lawyers who pandered to them. Most of the time, those trials were a sham from the beginning, rushed through, with little evidence or preparation. Witnesses were few, and black witnesses testified at the risk of their lives. They were like the trials given black men before they were very legally hanged, electrocuted, or sent to a prison chain gang for their natural lives. In his classic Dark Journey: Black Mississippians in the Age of Jim Crow, Neil McMillen describes a murder trial in Mississippi in 1934 where the time between arraignment, conviction, and sentence of death was seven days, with the sheriff freely admitting the defendants had been hung by the neck and beaten brutally to make them confess, and no evidence offered by, or argument, from the defense attorneys; the prosecutor in that case was John Stennis, later U.S. Senator from 1947 to 1989. The trial's entire purpose was to avoid a grisly barbecue (charred cinders hanging from a tree) that would bring the state into further disrepute. The defendants in such cases were made aware of the quick deaths they could obtain by pleading guilty, versus what the waiting mob would do to them.

Bring it forward to Ferguson. Of course, there was no lynch mob outside the courthouse, or an all-white jury ready to disregard a confession. Instead, we saw prosecutors committed to ensuring no indictment, while acting out a charade of justice. "Grand juries are known as tools of prosecutors," Jeffrey Toobin wrote in The New Yorker last week. He quoted a former chief judge of the New York Court of Appeals, "a prosecutor could persuade a grand jury to 'indict a ham sandwich' if he wanted to....aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment [of Officer Wilson]. The standard for such charges--probable cause, or more probable than not--is generally a very easy hurdle." Instead, District Attorney Robert McCulloch and his minions arranged the entire procedure to exculpate Officer Wilson.

How do we know that they managed the grand jury as an elaborate defense of the man who shot Mike Brown at least seven times, the last time through the top of his head? These two passages from the New York Times' report jump out: "The prosecutor asked witness after witness if it looked as if Mr. Brown were reaching for a weapon, though few said they saw anything like that." This is the tactic that unscrupulous defense lawyers use, leading the witness to create a false impression in the minds of a jury, equivalent to making insinuations about the sexual history of a rape victim. For a prosecutor to do it is, frankly, just as disgusting. Here's the second instance of the prosecutors working all-out to defend Wilson, exactly what we might expect his defense to do if he had come to trial:

The medical examiner described the succession of bullet wounds to the chest and face that, in his view, would not have immediately incapacitated Mr. Brown. The prosecutors repeatedly questioned the doctor about this, driving home that Mr. Brown could have still been mobile after the initial several shots. They seemed intent on emphasizing this point, which supports Officer Wilson's description of Brown lunging toward him despite serious wounds.

Now, in a real trial, with real prosecutors, there would have been ample evidence from other doctors contradicting that opinion. A jury would have been shown the enormous force of a Sig Sauer bullet hitting the human frame, not once but over and over. But that didn't happen because these prosecutors had been directed to ensure it didn't happen. Which is why this travesty recreated the basic features of Jim Crow justice: there is no justice, but rather a more elaborate farce (it is Missouri in the 21st century, not Mississippi in the 20th) to justify an official killing. Plus ca change.