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A trial for public good never achieves its goal

NYPD officers form a barrier between demonstrators at

NYPD officers form a barrier between demonstrators at the Macy's Thanksgiving Day Parade at 37th Street and Avenue of the Americas in Manhattan. They were protesting a grand jury decision on Nov. 24, 2014 not to indict a Ferguson, Mo., police officer Darren Wilson in the death on Aug. 9 of Michael Brown, an unarmed black teen. Photo Credit: Anthony Lanzilote

Yesterday, a Staten Island grand jury in the apparent chokehold death of Eric Garner did not indict the officer in the case. The decision will be treated as indistinguishable from the Michael Brown case in Ferguson, Missouri, by those who insist that the case was only about cops killing African-Americans with impunity.

In fact, the two tragic deaths are dramatically different. The "provocation" in the Brown case, hitting an officer and trying to steal his gun, was more deserving of a strong reaction than was Garner's attempt to avoid being arrested on suspicion of selling untaxed cigarettes. And no one knows for certain what happened during Brown's confrontation while, thanks to a bystander's video, we know what happened in the Garner case.

There is no doubt that police are often trigger-happy when confronted with blacks, and often act more like occupiers than public servants in African-American communities. But using the tragic death of Brown to prove that case to the public is the equivalent of holding up the O.J. Simpson criminal case as proof that police often frame innocent black men.

If, as is likely, there would've been an acquittal of Ferguson Officer Darren Wilson at trial -- and even if everyone agreed it was a fair trial -- it would have never satisfied those upset at the non-indictment.

Let's not forget that the mantra "No justice, no peace" is more accurately phrased "Do what I demand or no peace."

An attorney whose client has been indicted is almost expected to dismiss the significance of the action by citing the modern aphorism that "a district attorney could indict a ham sandwich." And the best evidence of that was the indictments in the 2006 Duke University lacrosse "scandal." There was more evidence against any random "ham sandwich" in that case than against the players who were indicted. The charges were eventually dropped and the local prosecutor disbarred -- but not before damage had been done.

Today, even reasonable people point to the undeniable fact that an indictment could have been easily obtained in Ferguson. They argue that a trial would've allowed all evidence to be vetted by both sides.

No one who values credibility has claimed there was proof beyond a reasonable doubt before the grand jury that decided against indicting Wilson. Those who advocate for a trial claim that an indictment is "no big deal" because "probable cause," the standard for an indictment, is so low.

Anyone who thinks that a costly and terrifying trial for one's freedom and reputation is "no big deal," has not gone through that ordeal. Indicting Wilson to have a transparent and cleansing trial would have been unethical and impractical, if not counterproductive.

As a young Jewish federal prosecutor, I knew that indicting ham sandwiches was not kosher. I remember a case in which a federal agent agreed that we did not have proof beyond a reasonable doubt, but the agent wanted to indict the target to expose him and to make him suffer the agony of trial. I refused to seek an indictment because in our judicial system convicting a guilty man on insufficient evidence is a miscarriage of justice.

Those who still demand a trial should be careful what they wish for. The belief that airing the evidence in the Ferguson case at trial would cleanse the public of doubt and misinformation has no contact with reality. One need only look at how the grand jury evidence is being deconstructed to know that the unusual transparency of the grand jury's proceedings served only to exacerbate tensions -- as well as give grist to TV talking heads who are worthy of an Olympic gold medal in synchronized spinning.

That does not mean trials should be unfairly blocked. It means that trials should not be unfairly generated because they would not be the cleansing vehicles many people expected them to be.

David S. Gould is a former federal prosecutor who is in private practice.


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