Nation Cannot Afford Return to the "Blood Feud"

We have a judicial system in America. It was fashioned and put in place by men conversant with Greek, Roman, Germanic and Canon law -- men who preferred the English common law to the Inquisition. Men who made a deliberate choice that the jury system was the best system developed over 2,500 years to safeguard the liberties of the individual.

Now a segment of our society claims to have no faith in our system of justice and resorts to mob rule.

The mobs in Ferguson, Mo., and elsewhere are still furious. They refuse to accept grand jury refusals to indict police officers in the Michael Brown and Eric Garner cases. The protesters instead have made up their own minds that the officers acted without justification and that the grand juries involved were corrupt.

Some demand that Attorney General Eric Holder and his U.S. Justice Department intervene and prosecute the officers involved for Civil Rights violations  -- even if the evidence indicates no racial motivation. Other “peaceful protesters” -- in the course of their “peaceful” protests --  have burgled, looted and burned the business properties of their entirely innocent neighbors in Ferguson. Still others have cluttered the streets of New York, chanting “What do we want? Dead cops!”

Here is a summary of the evidence the grand jury heard the Brown case (en.wikipedia.org/wiki/Shooting_of_Michael_Brown):

“Wilson’s DNA ... was found on Brown’s left palm. Brown’s DNA was found on the left thigh of Wilson’s pants, on the [officer’s] gun, and on the inside driver’s door handle of Wilson’s police SUV, the result of Brown’s blood spilled staining Wilson’s pants and the door handle. ...

“Documents released after the grand jury proceedings show that Wilson washed blood from his hands and checked his own gun into an evidence bag. ...

“Dr. Michael Graham, the St. Louis medical examiner, said blood was found on Wilson’s gun and inside the car, and tissue from Brown was found on the exterior of the driver’s side of Wilson’s vehicle, both of which were consistent with a struggle at that location.

“According to Judy Melinek, a San Franciscan pathologist, the official autopsy, which stated Brown’s hand had foreign matter consistent with a gun discharge on it, supported Wilson’s testimony that Brown was reaching for the weapon, or indicating the gun was inches away from Brown’s hand when it went off.

Three autopsies were performed on Brown’s body, with all three noting that Brown had been shot at least six times, including twice in the head, with no shots in his back.”

Imagine if police officers reacted the same way. Recently two New York City policemen were murdered, while sitting in their squad cars. Assume that their murderer, rather than committing suicide, had been arrested, tried and found not guilty. Would the N.Y. police have been justified in looting and burning neighborhood  businesses? Would you approve their marching and chanting, “What do we want? Dead criminals!”

A day doesn’t go by when a policeman isn’t required to break up a bar fight. And while the police are rarely killed dealing with drunks, the officers are frequently hurt. Often seriously. In most cases the assailant is arrested, charged with aggravated battery and prosecuted. But what happens when the police believe the defendant deserves prison time, and the judge imposes probation? The injured officer and his coworkers may not feel that “justice” was done. But they certainly don’t burn down neighborhoods, loot buildings and call for the killing of the thug who got probation.

In America, believe it or not, you do not have a constitutional right to loot liquor stores. You do not have a right to burn businesses because you perceive that you have been the victim of past injustice.

In Greece, 2,500 years ago, the Greek playwright Aeschyluis wrote tragedies. His play “The Eumenides,” deals with two very different systems of justice. The Goddess Athena has brought to the city of Athens a new system of criminal justice.

Under her new system the defendant’s guilt or innocence is determined by a jury of 12. Orestes, who has killed his mother because she had murdered his father, flees to Athens to escape the revenge of the “Furies.”

The Furies (aka, “The Erinyes”) --— the more ancient gods -- pursue Orestes to Athens. Under their more ancient law, the Furies, demand “blood for blood;” Orestes, the matricide, must pay for his mother’s blood with his own. When the jury splits, six for conviction, and six for acquittal, and when Athena herself breaks the deadlock, casting the deciding vote for acquittal, the Furies are outraged, and rage:

“Gods of the younger generation, you have ridden down the laws of the elder time, torn them out of my hands. I, disinherited, suffering, heavy with anger shall let loose on the land the vindictive poison dripping deadly out of my heart upon the ground; this from itself shall breed cancer.”

Our justice system is not perfect. Nothing human is. But it’s the best Americans have been able to devise. As Justice  Oliver Wendell Holmes states in “The Common Law,” “The earliest forms of legal procedure were grounded in vengeance. ... Roman Law started from the blood feud .... German law began that way.”

Justice Holmes states that Roman and Germanic law sought an alternative, the “composition”  -- that is, “damages” -- paid to buy-off the blood feud.

America has a choice. It can seek justice within our system of justice, or it can return to the vengeance of the blood feud --  the vengeance  of the Furies.

But recall: our system provides not only criminal remedies, but civil remedies for money damages, as well. The next of kin of Brown and Garner can sue for wrongful death and seek money damages. And if they do, they only have to prove that it is more likely than not that the officers involved used excessive force. If the physical evidence and witnesses do indeed support their claims, winning should be easy.

If not, then their only remedy appears to be to ignore the facts and howl for vengeance.

Posted: Saturday, January 10, 2015 12:00 am
By John Donald O'Shea

Copyright 2015 John Donald O'Shea