Last week, we learned that a grand jury found no probable cause to charge Officer Darren Wilson with a crime for his role in a fatal shooting in Ferguson, Missouri.
Then we learned that Ray Rice was immediately eligible to return to the NFL, months after he had been indefinitely suspended for assault.
Wilson’s victim was an unarmed black teenager. Rice’s victim was the woman who has since become his wife.
Actually, scratch that. In the eyes of the law, there are no victims in either case. In the eyes of society, it is a matter of public, and sometimes violent, debate whether Michael Brown got what was coming to him, or if Janay Palmer Rice got what she deserved.
Yes, the case against Wilson was subjected to the grand jury process. Yes, Rice was indicted in New Jersey and participated in the NFL’s disciplinary process. Yes, when it came to enforcing the rules against the nominal offenders, the rules were nominally followed.
As a lawyer, as an American, I believe those rules represent more than a window dressing of legitimacy. I believe those rules represent our noblest expression of fairness.
I also believe those rules can be broken. Our laws are only as good as the humans who enforce them. Sometimes, they’re not good enough.
When the St. Louis County prosecuting attorney, Robert McCulloch, announced the grand jury’s decision, it was clear from the early sentences of his prepared statement that there would be no indictment. McCulloch sounded like a defense lawyer. Coming to the press conference without context, one would have been justified in presuming Wilson was his client.
Perhaps McCulloch spoke defensively because he felt defensive. He was the one who allowed Wilson to testify at length to the grand jury. He was the one who opted not to challenge Wilson’s claim of self-defense with questions about the pictures of a barely bruised face and a pristine white shirt, or about the reasonableness of an immediate fear for life from behind the wheel of a running car. He was the one who proffered Wilson as the truth, and focused his prosecutorial energies on the witnesses who challenged that truth.
NFL Commissioner Roger Goodell mishandled Rice’s punishment at almost every opportunity. The former federal judge who reinstated Rice as an eligible NFL running back did so not because she considered him unworthy of punishment, but because she considered Goodell to have bungled how that punishment was issued. She essentially decided Goodell violated the principle of double jeopardy when he suspended Rice indefinitely based on the same facts that prompted Rice’s original two-game suspension.
Thanks to Goodell’s missteps, less attention has been paid to the Atlantic City prosecutors who have allowed Rice to escape any criminal penalty for his actions. After being indicted on an aggravated assault charge, Rice applied for “pretrial intervention.” Three weeks later, his application was accepted. The charge will not appear on his record if he stays out of trouble for 12 months and attends counseling.
The grand jury process is intended to allow a prosecutor to present his best evidence that a crime has been committed, not to exculpate the defendant before trial. Pretrial intervention is intended for non-violent offenders in victimless crimes; it was granted in less than 1 percent of all New Jersey domestic violence cases from 2010-2013. But process and punishment can be manipulated in the muted service of prejudice, be it of race or gender or power or prestige.
Last week put into stark relief the vulnerabilities that humans can bring to the systems they operate and the institutions they support. A justice system that can hide behind formalities is broken. A social contract that allows for violence to be escalated as long as there is some argument for self-defense is breached. A man who reflects on the life he ended, and another who stands over the unconscious body of his fiancee, each without expressing remorse, is an example of how far we have yet to go.