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By: Robert A. Bianchi, Esq., Morris County Prosecutor (2007-2013)
Written: September 2014
Are the circumstances surrounding the Michael Brown shooting case an example of what we expect of our justice system? I don’t believe so. Rather, I find that it is a perversion of justice – one that serves neither Michael Brown, Officer Darren Wilson, the police department, nor the citizens of this nation.
Justice requires that as best as is humanly possible, we search for the truth. However, justice also mandates that the citizens are confident that justice is carried out in a way that is consistent, fair, independent, and competent. The public’s confidence in the process is as important as the investigation itself.
Now, did law enforcement in Ferguson Missouri want things to be this way? I am sure the answer is “no.” Nevertheless, the way this case has been handled has served no one’s interests and will continue to have a negative blowback on all of law enforcement across the country and the many fine men and woman that serve to protect our communities.
Let me start by saying that as a former head county prosecutor, and now criminal defense attorney and police practices expert, I see the issue very clearly. Both Michael Brown and Officer Wilson – and the supporters of both – have a right to demand a fair and competent investigation. Accordingly in this regard, there is a mutuality of interest. However, it is obvious that throughout the investigation both sides feel as though the process is already skewed and wrought with undue influence. Unfortunately, both “sides” are accurate and that is a very bad sign as this case progresses!
When I was involved in a similar high profile fatal shooting of a minority citizen in a white community as the county prosecutor, we were deliberate to avoid exactly what has occurred in Missouri. As a result, I have come to understand that there is a right way and a wrong way to handle such a case. Moreover, I have learned that it must start on the right path from the very beginning. Otherwise, the result is what is occurring in the Ferguson case: (1) a profound lack of trust by everybody regardless their position on the issue(s); (2) a trial by media; and (3) a trial in the court of public opinion. Without question, right or wrong, neither “side” of this debate will receive proper justice, regardless of the actions taken by the prosecution at the end of the case. Unfortunately, the integrity of the process has already been irreparably damaged.
Justice in this case was rather simple to achieve – get the facts, determine the truth based solely upon those facts, and take the action that truth and our laws mandate. That way, all parties can have confidence that the process was fair and properly handled without bias. If the police officer used excessive force, then he should be prosecuted. However, if the officer’s use of deadly force was legally justified, then he should be exonerated. It really is that simple.
However, there is far more at play in this case- and lurking in all cases of this nature for the community -the issue of race.
People need to stop debating the issue of race in terms of it being “right or wrong,” or accurate or inaccurate. Rather, people must recognize that this issue is emotionally charged, existing for many years within the minority community, and with far too many years there has been a profound lack of proactive attempts by law enforcement executives to better communicate or address the minority communities concerns regarding law enforcement. Because this underlying notion is a common concern within the minority community, debating the issue of its legitimacy in a case such as this misses the point. It is a feeling, an opinion, and accordingly, to the individual it is a truth.
So too, the police have a valid lurking issue of concern. While it is true that they have the “power position,” it is also true that they are human beings with emotions as well. Police officers often feel as though they are “discriminated” against as a group of people and are not seen as individuals with feelings, cares, fears, and concerns, just like everyone else. They feel unappreciated and disrespected. Similar to the racial discrimination issue, they too often experience the negative effects of stereotypes and feel that they are “attacked” as a group, and not judged on an individual basis. And as with race, it is not a question of “right or wrong,” or accurate or inaccurate. It is a feeling, an opinion, and accordingly to many police officers, it is a truth.
When a person feels as though they are scrutinized as a result of their ties to a group – rather than as an individual – they feel discriminated against. Thus, as with the topic of race to the minority community, or the negative feelings that law enforcement believes to be true, it is that individual’s perception, right or wrong, and debating that issue misses the point. What is a good starting point in the dialogue, however, is that both “sides” have a common feeling that they are being wrongly targeted, and both “sides” have a mutuality of concerns that stem from a feeling of being discriminated upon unfairly.
Thus, it becomes a struggle between two groups of people, both of which perceives themselves as part of a discriminated group. As a result, the community, as well as the police officers, both feel that they cannot receive a “fair shake” in the process due to predetermined negative stereotypes, making “fairness” an impossibility.
This struggle is the sole reason why it is imperative that law enforcement executives do everything in their power to assure, and communicate, that their compass is pointed toward the truth, regardless of race. In this dialogue, it is also important that law enforcement express that they are not “bad people” but have a job to do and a job that they value. And, at the heart of that job is to protect the citizens of that community.
Now, I realize getting both “sides” to the table to discuss these feelings is not an easy task as one’s opinions are what they are. However, there is a way to exacerbate these negative feelings, and there are ways to mitigate them. Unfortunately, this case has clearly (right or wrong) exacerbated the emotional gap in a dangerous and non-productive way.
There are many errors thus far in the Michael Brown shooting case that make the trustworthiness of this investigation a problem. I will only mention three:
- Community Relations:
Prosecutors and police MUST establish solid, trustworthy community relationships way in advance to any problem. I have seen this problem arise time and time again. There is a resistance in law enforcement (and I realize why in some instances) to get out into the community and proactively dialogue with the community and its leaders. Worse yet, there are many “leaders” of law enforcement agencies that do not, at a minimum , value the vision and benefits of community relations and see it as something that is not productive or worthy of their time. This is a huge mistake!
Establishing bonds with the community that the law enforcement serves, and is funded by, is imperative. From a law enforcement perspective, the dividends of such relationships are many. Firstly, you show the community you have an investment in keeping their community safe. Accordingly, you allow the two to be “partners” in the crime fighting endeavor, rather than being viewed as untrustworthy adversaries.
The intelligence gained from healthy community relationships, as opposed to distrust, is invaluable to law enforcement. It is the people of the communities that have a vested stake in keeping their communities safe. And they are the ones that know the individuals who are committing the crimes in their community. They are able to steer law enforcement like a laser beam to the crime problem. Without their help, law enforcement is left to luck to fall upon them to get a worthy case. It is also a tremendous waste of precious taxpayer resources. Community relations is a “force multiplier” to law enforcement’s laudable goal of arresting and prosecuting those persons committing crimes that often ravage communities. And here too, there is a mutuality of interest in the goal of eradicating crime in the community. It is another place where each “side” has the same goals and is another great starting point in the dialogue of what joins us all together, than what separates us.
Also, this allows the community having problems with law enforcement’s actions to have a voice and opportunity to express any concerns in a calm, professional, and intelligent manner. Law enforcement does not have to agree with the concerns, but at the very least, the community is being heard and given a valuable opportunity to explain its position. This too clears up misinformation and distrust and is a healthy win for both the community and law enforcement that serves them.
Unfortunately, community affairs relations is not always a priority on most law enforcement agendas. It is often seen as a “warm and fuzzy” unit that has no meaning to “real cops and prosecutors.” This kind of archaic thinking is at the root of most of these issues and needs to be put to rest in the law enforcement community immediately …from the top down.
When I was Prosecutor, my staff and I often visited all of the leaders in our community, went to their events, attended various services, and held ceremonies honoring the different cultures, faiths, and customs. We explained to the leaders of the community and their members our vision, provided a high level staff member as a point of contact (my Chief of Investigations, William Schievella), and addressed any concerns they had. It was always a positive dialogue, and we were able to connect and know one another as individual people …not just people in an ivory tower making random decisions affecting their lives. It formed a symbiotic and transparent relationship. Respect and trust was being developed.
Consequently, on that tragic day when the fatal police shooting of a minority citizen occurred in my county, I was able to assemble the community leaders in my office for a briefing immediately upon leaving the scene of the shooting. Did I have to do this? No. Did I give them investigative information? No. However, because of our ongoing relationship, I assured them that the matter would be fully investigated, and wherever the facts, law, and truth led us, our findings would be made public for all to see.
I was able to tell the community leaders that we already had a relationship and I believed that I had earned their trust. They agreed! I told them I did not want protests, activists, a media frenzy, or the like, to be part of the investigation because invariably the police would then respond to protect their interests and the case would then be played out in the court of public opinion and not assure us that we were getting to the truth. They agreed, the police agreed, and it allowed for us to handle the case slowly, methodically, and in a manner that was not sidetracked by a public relations disaster.
- How to Manage the Media Onslaught:
I am not faulting the media, as they have a valuable job to perform as well. However, the police and prosecutors have a different job and the prosecutor’s is more meticulous and detailed oriented and takes time to do right. They have to build a case that can withstand the rigors of a court of law and proof beyond a reasonable doubt, if one is to be charged. This takes time and patience to do correctly, regardless of the outcome. It is the only way that both sides can be assured that there is integrity to the process and not a rush to judgment on partial facts and/or bad data.
The media, however, wants answers well before facts can be confirmed, tested for their veracity, and substantiated by objective forensic means that take time and patience. The police and prosecutors, however, must move slowly to gather and analyze facts. This tension between the media’s desire for immediate information and law enforcement’s qualitatively slow pace creates a constant battle.
Media accounts can often skew witnesses’ memory and hinder law enforcement’s ability to do their job. But we all know the media will never simply go away, nor should they. The compromise is that the law enforcement community provide only a little information, and then be bold in stating that this is an active investigation and not release any information, even if criticized by the media for doing so. In the end, it is not about criticism by the media that counts- it is about getting it right. Sure, there may be unwarranted “hits” for doing so, but in the end the law enforcement agency investigating a case will be respected for having a clean and detailed set of facts, undaunted by pressure from the community, police, or media. More importantly, the investigation will withstand the rigors of those that who later review what was done, and are seeking to determine if it was done thoroughly, properly, and objectively.
More importantly, there should never be a release of negative information about the person killed, while claiming on the other hand to be holding off on information regarding the police officer’s actions. Of course, one would have to know that doing so gives the understandable appearance that law enforcement is publicly covering for the officer while trying to sully the reputation of the person shot.
This was a very bad media and investigative strategy and was very ill-advised.
- It is imperative that the county or state or federal officials immediately step in to investigate a shooting:
You cannot leave it to an agency to investigate their own, even for a second. Extremely valuable information comes at the beginning of a case, evidence may be lost or destroyed, and the appearance of impropriety ratchets up. There needs to be a layer of separation among law enforcement agencies immediately at this crucial stage of the investigation.
Now, I do not know the “players” in this matter, or even the fair facts. However, I do know that there is a palpable distrust in the community and this case has become a media nightmare for the community and the police department. There is a community that demands an officer be held accountable and prosecuted, even before all of the facts, forensics, etc. are established.
Also, in my opinion, some in the media, as well as some elected officials, have taken advantage of “scoring points” with constituent groups before all the facts are in. This is not only unfair to both sides, but it is pandering at its worst and it is shameful! These actions only add to the problem, create greater distrust, and are done for advancement of their personal agendas, which is a disservice to the public.
A simple rhetorical question suffices to make the point. Would you want to be judged for something you did in this fashion? Of course not!
From what the media portrays – one of the few people that seems to get this is Michael Brown’s father. It is he that has the foresight and courage to state that we all should wait until the authorities have the time to do a thorough investigation and not jump to conclusions. It is he that is trying to tamp down speculation, anger, and hatred. And, importantly, he is not using this as a platform to advance any interest other than getting to the truth. Well done! That is exactly the tenor that the police and prosecutors should have been able to accomplish from the outset.
In the police shooting case my office handled, we came in and took the investigation over from the local police agency, we met the community leaders and the police, and we immediately empaneled a Grand Jury. We also released very little information to the media. Lastly, we fully and laboriously gathered all of the evidence and used a multitude of experts (two for each field of expertise) in order to provide us with independent findings to ensure that they matched up.
Then we presented every fact to the Grand Jury. And when the Grand Jury did not act against the police officer – a conclusion I agreed with given the evidence – we held an extensive press conference where all questions were answered. The audience at that conference was comprised of representatives from the police community to the minority community leaders so that they could themselves hear and ask questions.
After the press conference, two news reporters for national outlets told me it was the most through and exhaustive investigation and press conference they had ever covered. The police and community leaders all felt that they were fairly treated, communicated with, and that the end result was the right one. There was no fanfare, anger, hostility, feelings of resentment, as the facts, extensive investigation, unbiased assessment of the case, independent findings, exhaustiveness of the investigation, trust from prior relationships, all led to a conclusion that things were done fairly, independently, and rightly. In other words, there was not a basis for attacks and/or legitimate debate as to the fairness and integrity of the process.
The results of the Michael Brown shooting is a nightmare for the police and prosecution right now. And, now a nation watches this debacle and is forming opinions upon a case that was mishandled from the outset. The distrust stemming from previously poor community relations is now corning home to roost. The media saturation, knee jerk assessment of the facts and opinions, people taking advantage of the situation for personal advancement , as well as the rhetoric, guarantee that even if investigated properly , neither the Michael Brown supporters, nor the police officer supporters, will ever feel that this was anything more than a sham.
In my mind, justice will never be possible in this case and all that will develop nationwide is a deepening distrust between the law enforcement community and the citizens they serve. This is so tragic, especially for the many fine men and woman in law enforcement that dedicate and risk their lives each day protecting us and that are striving to be excellent police officers and who are doing things correctly.
Lastly, there are some law enforcement agencies that have very proactive community affairs relations with the communities they serve. They work hard at doing things right and allowing the community to participate in a healthy dialogue.
In the end, we can only hope that this case evidences the importance of honest attempts to reach out to the communities that law enforcement serves, and that the communities that law enforcement serves will make honest efforts to meet them half way. In this way, at least this tragic investigation can have some positive outcome.
© 2014 Robert A. Bianchi, Esq.
The Bianchi Law Group, LLC is a full-service litigation law firm practicing in the areas of criminal defense, personal injury and business litigation. The firm is led by Robert A. Bianchi, Esq., the former Morris County Prosecutor, one of only 250 Certified Criminal Trial Attorneys in New Jersey, as designated by the New Jersey Supreme Court, and the only former County Prosecutor among this elite group. Bob is joined by David Bruno, Esq., a former Assistant County Prosecutor and Certified Criminal Trial Attorney, and Brielle Perelli, Esq.
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