When a person is arrested for probable cause, a prosecutor convenes a grand jury in order to bring an indictment. But, St. Louis County Prosecutor Robert McCullough used the grand jury not to indict, but to exonerate Darren Wilson, the Ferguson police officer who shot and killed Michael Brown. In doing so, he stood the judicial process on its head.
In McCullough’s statement to the press he made sure to undermine the credibility of witnesses who testified against Wilson. He described how they misrepresented the facts, had faulty memories, withdrew previous statements, and/or contradicted themselves in their testimony. Evidently, in an effort to counter these unreliable witnesses, McCulloch invited Wilson to appear before the grand jury to testify in his own defense. Shaun King at Daily Kos characterized Wilson’s testimony:
After a thorough examination of Darren Wilson’s four-hour long open testimony before the grand jury, it’s clear that he was well-prepared to paint the narrative of a cordial, helpless, respectable community servant who shockingly found himself up against the biggest, blackest, strongest, demonic super monster he’s ever seen in his life.
Wilson told the same story in his interview with George Stephanopoulos on ABC news. His story may be true, yet many witnesses tell a different story of the events surrounding Wilson’s killing of Michael Brown. Even the police reports have changed since the time of the shooting. There were enough inconsistencies in the grand jury testimony that Wilson should have been indicted for something and gone to trial, and McCulloch should have done his job and led the jurors to that conclusion. But, as Paul Rosenberg says “the fix was in from the moment Darren Wilson shot and killed Michael Brown.”
Paul Rosenberg: “Everything the Darren Wilson grand jury got wrong: The lies, errors and mistruths that let Michael Brown’s killer off the hook”
Data is sketchy and incomplete, but police shoot scores of unarmed blacks every year, and rarely face significant consequences, so why shouldn’t Wilson get away with murder? Still, at least giving the appearance of justice for all, and requiring Wilson to stand trial hardly seemed too much to ask—unless, of course, you were St. Louis County Prosecutor Bob McCulloch, who defended Wilson and attacked his accusers, the media and social media in a night-time press conference Monday that seemed perfectly timed and perfectly toned to elicit the most angry, unfocused and uncontrolled response possible.
As part of his theatre of openness and impartiality, however, McCulloch included a document dump which may have been intended to be overwhelming, and therefore ignored, but which has already proven sufficient to undermine McCulloch’s ludicrous posture of legal rectitude.
Jeffrey Toobin: “How Not to Use a Grand Jury”
In Jeffrey Toobin’s recent article in the New Yorker, “How Not To Use A Grand Jury,” he reminds us that grand juries are tools used by prosecutors for the purpose of bringing indictments. They are very good at getting what they want. He repeats the famous quote by former New York judge Sol Wachter, “a good prosecutor could persuade a grand jury to indict a ham sandwich.” In McCulloch’s case, he misused the judicial process and skewed the information presented to the jurors so as to make it difficult, if not impossible for them to indict. He helped spare Wilson a trial, where he would be subject to cross-examination. Further, he protected the all-white Ferguson Police Department from having their racism and aggressive behavior toward the mostly black citizens of Ferguson exposed.
In sending Wilson’s case to the grand jury, McCulloch technically turned over to them the decision about whether to prosecute. By submitting all the evidence to the grand jury, he added to the perception that this process represented an independent evaluation of the evidence. But there is little doubt that he remained largely in control of the process; aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment. The standard for such charges—probable cause, or more probable than not—is generally a very easy hurdle. If McCulloch’s lawyers had simply pared down the evidence to that which incriminated Wilson, they would have easily obtained an indictment.
The grand jury chose not to indict Wilson for any crimes in connection with Brown’s death. In a news conference following the decision, McCulloch laid out the evidence that he believed supported the grand jury’s finding. In making the case for Wilson’s innocence, McCulloch cherry-picked the most exculpatory information from what was assembled before the grand jury.
The family of Michael Brown, the citizens of Ferguson and of st. Louis County deserve a fair and impartial prosecutor. They don’t have one.