Ferguson probe: The next best thing

Less than a month since the shooting death of 18-year-old Michael Brown, the Department of Justice made official the launch of a federal investigation of the Ferguson Police Department.

That’s the hard news.

Now read it again: A major civil-rights investigation. Launched in less than a month. In Ferguson.

Many predicted DOJ would launch the probe—Attorney General Eric Holder doesn’t just visit small midwestern cities for no reason. But in the larger scheme of eradicating abusive policing, the move is more symbolic than anything else.

It is symbolic because Ferguson is tiny. The small St. Louis suburb, population 21,000, is now in the same league as Detroit, Seattle, Portland, New Orleans, Newark, and the island of Puerto Rico as hotbeds of unconstitutional police practices. DOJ has investigated and issued scathing reports on all of them.

That DOJ would choose to use its power under the Violent Crime Control and Law Enforcement Act of 1994—which Congress passed in the wake of the attack on Rodney King by Los Angeles police—means Ferguson is now branded. But it’s mostly a formality.

The “pattern-and-practice” probe usually takes years. Compliance with its recommendations and consent agreements, if any, also takes a long time. There’s also the likelihood, given the modest size of the Ferguson force, that no pattern or practice of discrimination will be found. Ferguson is no Detroit.

But more importantly, the civil-rights law DOJ will be enforcing—it turns 20 this month—is not a criminal statute, but an enforcement provision; it rarely leads to an actual lawsuit in federal court, despite court involvement to oversee compliance.

In practice, that means no Ferguson officers will go to jail. And it means no money damages will be paid to victims of abusive policing. Brown’s family will have to pursue its own civil-rights lawsuit against the city, if it chooses to go that route.

What may come of the probe is more sensible and respectful policing—guidelines for best practices. DOJ reports are painstakingly thorough in their recommendations. The federal government may reach a consent decree with Ferguson, and that could go a long way. The city already announced that its officers will be wearing body cameras. All silver linings.

But is this what Ferguson and the other communities it represents are looking for?

That’s a broader question that goes beyond a federal probe. The DOJ move, if anything, only partly addresses the larger discontent that Ferguson residents experience—the criminalization of poverty, the lack of political representation, the “history of mistrust” between Ferguson and law enforcement that Holder underscored.

Viewed through a cynical lens, the DOJ probe may even be an implicit recognition that the government, for all its power and resources, is powerless to indict officer Darren Wilson. The legal hurdle to bring charges against Wilson is so high, announcing the investigation almost seems like the next best thing: It preempts the news that Wilson can’t and won’t be indicted for civil-rights violations.

Nobody knows where that separate investigation stands, but no charges for Wilson is news no one in Ferguson wants to hear; Los Angeles didn’t want to hear that the officers who brutalized Rodney King were acquitted.

It will take a true change in dynamics between police and the policed so that Ferguson never happens again. Twenty years of federal investigations have shown that true reform runs deeper than a long to-do list for unruly law enforcement.

Death under color of law

One thing is to kill a man and get convicted of murder. Quite another is to kill a man and get convicted of violating his civil rights.

The latter, it turns out, can be a lot harder.

Since the shooting death of 18-year-old Michael Brown in Ferguson, Mo., the Department of Justice and the FBI have been investigating the events surrounding his death. A big question is whether officer Darren Wilson can be federally prosecuted.

In this case, the federal government can’t pursue a murder conviction; that’s the province of Missouri authorities under state law. What DOJ can do is seek to indict Wilson under 18 U.S.C. § 242, the federal criminal civil-rights statute.

Therein lies the problem.

Section 242 is not just any criminal statute. It is a Reconstruction Era law that sought to vindicate rights enshrined in the Fourteenth Amendment—an “antidiscrimination measure” designed to protect the newly acquired rights of blacks.

As history would have it, the U.S. Supreme Court was once called to interpret the statute in Screws v. United States. The case centered around the death of Robert Hall, a black man who was beaten to death after officers claimed he had reached for a gun.

Does that sound familiar?

The court called the case “a shocking and revolting episode in law enforcement,” but more importantly, it upheld the statute from attacks that it was unconstitutional. It has been a valuable prosecutorial tool for the federal government since.

But as effective as Section 242 has been, as written, it sets an extremely high bar for conviction. The law requires a federal prosecutor to prove, beyond a reasonable doubt, that a government actor “willfully” deprived someone of his or her civil rights. Depending on the gravity of the deprivation, the statute allows up to life imprisonment or even the death penalty.

All of this looks good on paper, but the hardest part is proving that the deprivation of civil rights—or in Brown’s case, that his life was taken without due process—was undertaken “willfully.”

Proving willfulness is difficult because DOJ would need enough evidence to essentially get inside Wilson’s mind—to show that he had the criminal intent to deprive Brown of his constitutional right to life. In criminal-law speak, this is the mens rea of Section 242.

Of all the elements of a criminal offense, the mens rea is often the hardest to prove to a jury. How do you get into someone’s mind?

The easiest way is with a confession. If Wilson had confided in someone that he harbors animus for black teenagers and DOJ somehow got a hold of this information, then the department could possibly use this confession against him.

But even that’s not enough. Ideally, DOJ would need evidence that Wilson specifically targeted Brown because he was black. That’s a huge piece of evidence, and one DOJ is unlikely to uncover, if it uncovers it at all.

This explains reports that the FBI has interviewed “hundreds” of witnesses, and Attorney General Eric Holder’s statement that the investigation “will take time to complete.” It’s very likely the bulk of the government’s case will center on Wilson’s mind at the time of the shooting. And making that case will be hard.

When Section 242 and similar statutes were enacted in the mid-1800s, Congress’ intent was to go after egregious abuses of power on account of race—lynchings, mob killings, sham trials, unlawful arrests. Whether the law covers Wilson’s conduct remains to be seen.

Defender of rights, not murderers

Debo P. Adegbile is not a household name. After what happened to him in the United States Senate, he may never be.

Born and raised in New York, Adegbile, a lawyer, was nominated by President Barack Obama to lead the Civil Rights Division of the Department of Justice. The Senate rejected his nomination.

Adegbile’s capital sin: Defending a murderer.

When he worked for the NAACP Legal Defense Fund, Adegbile represented Mumia Abu-Jamal, a man convicted and sentenced to the death penalty for the murder of a Philadelphia police officer. In life and politics, those who kill police officers are not well-liked.

But under the Senate’s reasoning, lawyers who defend such clients also are not well-liked.

Adegbile’s defense, it should be noted, had nothing to do with claiming innocence for Abu-Jamal; the jury had already convicted him. Adegbile represented him after he had been sentenced to die. He argued that the sentencing judge made a procedural error that violated his client’s constitutional rights.

Why did the Legal Defense Fund get involved? Because the death penalty, historically, has been applied disproportionately to more blacks than whites. The organization decided to appeal the sentence because racial considerations may never factor into the conviction phase in a criminal case. Never. (Two appeals courts, in 2008 and 2011, sided with the Legal Defense Fund.)

The law notwithstanding, the Senate was moved by a choir of senators who branded Adegbile a “defender of murderers”—or worse, a cop killer advocate—and ultimately rejected his nomination to a federal office charged with protecting civil rights. Precisely for defending someone’s civil rights.

What the Senate did is not only unheard-of, but it sets a terrible precedent, for a number of reasons.

First, because everyone has constitutional rights, among them the right to be represented by an attorney in a criminal case. In rejecting Adegbile for representing an unpopular client—also endowed with rights—the Senate dealt a slap in the face to lawyers who represent those society deems undeserving. But the beauty of the Constitution is that it is not a respecter of persons. Everyone is entitled to zealous and meaningful representation, no matter the crime—even the murder of a police officer.

Second, the Senate dealt a blow to public service. Being a civil-rights lawyer or a public defender is not as lucrative as being a corporate lawyer. Defending a Latino accused of stealing a bicycle is less lucrative than defending a Wall Street banker accused of stealing millions.

The very chief justice of the United States, John Roberts, once defended a serial murderer. The big difference between Roberts and Adegbile is that the former did so while working for a white-shoe law firm—the kind that defends Wall Street executives—while Adegbile defended Abu-Jamal as an LDF attorney. But of the two, only Roberts was blessed with Senate confirmation.

Lastly, Adegbile’s rejection by the Senate shows the power conservative news media wields in sowing fear in Congress and the public. Because no matter how sterling Adegbile’s résumé, the very fact of defending an unpopular client brought a wave of criticism by Fox News and its allies. All of it has been discredited as irrelevant or not based in fact.

You need a special kind of person to become a lawyer to the least fortunate, the outcasts, those people. When a branch of government calls into question that noble calling, even fewer aspirants will be led to choose that path.

And forget about aspiring to a presidential nomination. The chances are almost nonexistent.

(A version of this column was originally published in Spanish in the print and online editions of New York’s El Diario.)