In the case of Darren Wilson, a City of Ferguson police officer in the State of Missouri, under investigation in the death of teenager Michael Brown, it is believed widely that St. Louis County Prosecuting Attorney Bob McCulloch does not want the grand jury to return an indictment.
The prosecutor is the most powerful official in the American criminal justice system. Prosecutors exercise almost unrestricted discretion over who is charged with a crime, what charges are file, when they are dropped, whether or not to plea bargain, and how to allocate a wide scope of prosecutorial resources.
I said almost unrestricted discretion, because it is still a matter for the courts to uncover instances or systematic examples of prosecutorial bias in making the decisions that are within a prosecutor's remit.
The integrity of a prosecutor is therefore, paramount.
Criminal Law professors Senna and Siegel have suggested that the integrity of a prosecutor can be discerned by the answer given to the following question: When you exercise discretion, are you more concerned with fairness, the likelihood of a conviction, or political considerations?
I will leave it to the reader to weigh the evidence and decide whether St Louis Prosecutor, Bob McCulloch's actions in the Darren Wilson case were driven by a desire for fairness, or political considerations.
One need not delve into the conviction (indictment) motive, since there is no possibility of an indictment in the Darren Wilson case, and to achieve that exact outcome McCulloch arranged and manipulated the legal process. Some show, but no substance.
First, it was his decision, made after eleven days, not to conduct a preliminary hearing, in which those involved, the judge, the prosecutor, witnesses and the defendant would appear in a courtroom and the legal process would proceed as per normal under the gaze of Lady Justice blindfolded to everything, but the facts.
But, that process would have allowed testimony about other incidents, when under the color of authority the defendant, Wilson, had acted outside the high standards of decorum that the public and the rule of law demand. Videotaped evidence of a recent incident involving the officer in question, may have been admitted to show, if nothing else, a pattern of behavior between officer Wilson and the community the victim, Brown, lived in.
Probing questions would have been asked, such as, was Officer Wilson called to that incident because he plays the Dirty Harry role within the Ferguson Police Department?
Most police departments have one or more such officers that show a propensity to get in there and mix things up, a euphemism for the tendency to use violence.
A recent case in Cincinnati, Ohio, unearthed just such a police officer, who travelled a considerable distance from the district he was assigned to one night to an incident and in fact, did bring over-the-top violence to the scene.
Fortunately for the public, one of the individuals he engaged that night was the daughter of a city councilman.
Did Wilson play that role in the Ferguson Police Department, did he suggest that other officers in the immediate area pull back and let him handle this one, and just how far did he travel to get to the incident where violence was indeed used, lethal violence?
Perhaps, these questions have or will be asked behind the closed doors of the grand jury, and perhaps not.
And so, over three months later, we are still waiting and wondering what the outcome will be.
The right to a speedy trial has been denied all involved in this case ˗ the witnesses whose memories fade and are poisoned with the passing of time; the public in whose interest law enforcement exists to protect and to serve; the constitutional requirement that justice is blind to; the very considerations that are glaring in this case; the dead teen's parents; friends and community as well as the accused.
And, by implication, the American system of the rule of law is also on trial.
This case is yet another example of the distinctly political nature, notoriously so, of the grand jury system when it comes to investigating killings at the hands of the police. And, this fact is not confined to the St Louis area of the United States.
Law infinitely measurable is not justice - trampling out the vintage where the grapes of wrath are stored …
The actions of all those involved in this case and the larger implications it carries, such as, the cohesiveness of the social fabric of the United States of America are important, and at the same time, telling.
In contrast to Missouri Governor Jay Nixon, assuming what has often been termed the law and order stance and bellowing out something to the effect, “I will not stand for lawlessness,” Robert Kennedy, amid the tragedy of the assassination of Rev. Dr. Martin Luther King on Thursday the 4th of April, 1968, broke the news of King's death to a large gathering of African Americans that same evening in Indianapolis, Indiana.
The gathering was a scheduled campaign rally for Kennedy in his bid for the 1968 Democratic nomination for president. He only learned of King’s death when he arrived by plane at Indianapolis.
Tellingly, Kennedy was advised by the local chief of police against making the campaign stop, since it was to be held in a part of the city the police described as a dangerous ghetto. One can only imagine how that description was indicative of the way the Indianapolis Police Force patrolled that area and interacted with its residents.
But Kennedy insisted on going.
He walked onto the makeshift stage and asked if those gathered there knew – and then, realizing they did not know, he addressed them:
Ladies and Gentlemen - I'm only going to talk to you for a minute or so this evening. Because ...
Because, I have some very sad news for all of you, and I think sad news for all of our fellow citizens and people who love peace all over the world, and that is that Martin Luther King was shot and was killed tonight in Memphis, Tennessee.
Martin Luther King dedicated his life to love and to justice between fellow human beings. And, he died in the cause of that effort.
On this difficult day, in/at this difficult time for the United States, it's perhaps well to ask what kind of a nation we are and what direction we want to move in.
For those of you who are black - considering the evidence that there were white people who were responsible - you can be filled with bitterness, and with hatred, and a desire for revenge.
We can move in that direction as a country, towards greater polarization - black people amongst blacks, and white amongst whites, filled with hatred toward one another.
Or, we can make an effort, as Martin Luther King did, to understand and to comprehend, and replace that violence, that stain of bloodshed that has spread across our land, with an effort to understand compassion and love.
For those of you who are black and are tempted to be filled with hatred and mistrust of the injustice of such an act, against all white people, I would only say that I can also feel in my own heart the same kind of feeling. I had a member of my family killed, but he was killed by a white man.
But, we have to make an effort in the United States … we have to make an effort to understand, to get beyond these rather difficult times.
My favorite poet was Aeschylus. He once wrote: "Even in our sleep, pain which cannot forget falls drop by drop upon the heart, until, in our own despair, against our will, comes wisdom through the awful grace of God."
What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence and lawlessness, but is love and wisdom, and compassion toward one another.
And, a feeling of justice towards those who still suffer within our country, whether they be white or whether they be black.
So, I ask you tonight to return home, to say a prayer for the family of Martin Luther King, yeah that's true.
But, more importantly, to say a prayer for our own country, which all of us love - a prayer for understanding and that compassion of which I spoke.
We can do well in this country. We will have difficult times. We have had difficult times in the past. And, we will have difficult times in the future.
It is not the end of violence; it is not the end of lawlessness, and it's not the end of disorder.
But, the vast majority of white people and the vast majority of black people in this country want to live together, want to improve the quality of our lives, and want justice for all human beings that abide in our land.
Let us dedicate ourselves to what the Greeks wrote so many years ago:
To tame the savageness of man and make gentle the life of this world …
Let us dedicate ourselves to that, and say a prayer for our country and for our people. Thank you very much.
But, alas, Governor Jay Nixon is no Robert Kennedy.