Wednesday, November 26, 2014

Theater of Justice

Ferguson Prosecuting Attorney Robert McCulloch

Everything is theater, right?

In his book The Necessity of Theater; The Art of Watching and Being Watched, philosopher Paul Woodruff attempts a definition of theater. He arrives at the following:

“Theatre is the art by which human beings make human action worth watching, in a measured time and space.”

Woodruff tests his definition over the course of his volume and he examines this art from the perspective of practitioners and audience.

A lot of words have been written about the evening of November 24th and the press conference held by Ferguson prosecutor Robert McCulloch. While the decision of the grand jury regarding the possible indictment of Ferguson, Missouri police officer Darren Wilson in the matter of the shooting of Michael Brown was known to prosecutors earlier in the day, the announcement was scheduled for 8:00PM Central Time.

Apparently, not a lot of notice was given to community members about the release of the information.

Even as it was happening, most of America must have had an uneasy feeling while watching the split screen of McCulloch and the large gathering protesters who were listening as he spent over ten minutes prefacing the decision of the grand jury not to indict Officer Wilson.


Watching it unfold, it would be hard to imagine a soul who was not thinking: “Maybe this was a bad idea to announce this at night?”  This particular sentiment was summed up succinctly in this tweet:


The official word on the decision from the prosecutor’s office was given as follows:
“We coordinated with law enforcement, gave schools time to get all children home and in a safe location, gave businesses time to make a decision regarding their employees' safety, prepared our statement and then made the announcement. We also had to give media time to set up.”
Of course, that last sentence would have been good satire years ago, but today we don’t bat an eye.

The content of the announcement itself has been the subject of speculation by legal analysts, many of whom suggest that McCulloch’s lengthy preamble to the actual release of the grand jury decision was an effort to distance himself from the grand jury process.

In effect, McColluch was casting himself as the simple messenger, sent from the mountain with the envelope containing the answers - loyal to this sacred system, yet, not any more involved in it than anybody else watching CNN.

Indeed, the press conference merely underlined the approach the prosecutor took towards the entire Grand Jury investigation: A posture of neutrality and then a presentation of all the evidence they had mined.  As as an offering to the people, all the evidence would be laid at the feet of any who wished to see it. You see, we are no different than he is.

Some legal reporters, such as Jeffrey Toobin, suggest this approach in itself was a case of a prosecutor putting his thumb on the scale:

“McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion.”
McCulloch's goal, according to Toobin and some other analysts, was to create the illusion that a trial had been held.

McCulloch’s opening statements at the conference also contain some subplots or “B-stories”. The media bristled for days at McCulloch’s complaint that, “the most significant challenge encountered in this investigation has been the 24-hour news cycle and its insatiable appetite for something, for anything to talk about, following closely behind with the nonstop rumors on social media.”

It was easy to see the setup. The news crews were already positioned all around Ferguson, solemnly, but anxiously, awaiting the “verdict,” along with the fairly predictable fallout. As the cameras in courthouse rolled on the lone figure of McCulloch at the podium, the cameras on the street sent us live video of the impending heartache or jubilation of the crowd.

Everybody, watchers and players, seemed to be involved in this. McCulloch got his moment in the prime time spotlight and the opportunity to craft a narrative, one in which he is cast as the dutiful public servant.  This is, at the least, disingenuous. He is, after all, an elected official, who has run successful election campaigns again and again.

The players are one thing, but I think about the audience to which McCulloch had to imagine he was playing. He was thinking, probably, as most political-minded folks do, of the audience pact that theatergoers have with the performance: deeply engaged, but not actually participating; caring, but not getting too emotional; thinking, but not drifting away in your thoughts; identifying, but avoiding transference.

But this isn’t theater and it isn’t politics. This is justice.

The justice system is ceremonial in some respects and so it can easily be considered a theater of its own. However, the boundaries of performance won’t hold in the theater of justice without arms.



Things got dangerous, very fast. And reporters suddenly were looking a little worried here and there, and even gave away the facade - indicating that they had security details with them.

Even Judge Judy has a bailiff.


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