There are plenty of questions swirling around St. Louis County Prosecutor Bob McCulloch in the wake of the grand jury's decision not to indict officer Darren Wilson for killing unarmed black teenager Michael Brown. McCulloch's performance last night in announcing the decision prompted some great ones
from Mark Sumner, but let's back up a few months to the basic decision by McCulloch in taking this to the grand jury, and how he presented the case there. As more information comes out, it looks more and more like the very unusual process McCulloch kicked off was intended to get the result he wanted—no indictment.
What possible reason was there for a prosecutor to seat a grand jury for an indictment he didn't want for an accused he wanted to defend?
Let's start with McCulloch's refusal to step aside
in this case. The people in and around Ferguson gave a vote of no confidence, in effect, to McCulloch when 70,000 of them signed a petition demanding that he recuse himself. McCulloch's history is problematic, at best, and his alignment with the cops unquestioned. His father was a cop, who was killed in the line of duty by an African-American person. When the county police clearly were overreacting in handling the protests immediately following the killing, and Gov. Jay Nixon called in the state highway patrol to try to calm the situation down, McCulloch loudly and publicly criticized him for "denigrat[ing] the men and women of the county police." McCulloch's bias going into this grand jury proceeding was unquestioned, certainly in the community, and his refusal to step aside guaranteed that there would be a high level of distrust in the proceedings.
For more on those proceedings, and the vast array of problems in how this process unfolded, please continue reading after the jump.
As for the proceedings, they were highly unusual and in the view of at least these two legal experts, deeply flawed. The lawyers, St. Louis University law professor Susan McGraugh and Jerryl T. Christmas, a defense attorney and former prosecutor in St. Louis lay out their problems in interviews with Phillip Johnson, a "filmmaker, writer [and] community engager." First and foremost, McCulloch's decision to present every bit of evidence he had—with no culling and no presentation—to the grand jury was a strong signal he was trying to avoid a prosecution. A prosecutor normally gives the grand jury only the evidence necessary to establish probable cause. Then McCulloch allowed Wilson four full hours to present his testimony, an opportunity McGraugh says is never allowed her criminal suspects. In summary:
This was not a typical grand jury proceeding in which only a few witnesses testify, the prosecutor tightly controls what grand jurors hear, and the suspect does not testify at length about why he should not be charged.
Then there are the leaks. The leaks that occurred throughout the "secret" deliberations of the grand jury
that all seemed to bolster Wilson's story.
In October, the Washington Post reported a number of leaks in the case, nearly all in support of Wilson's story. The leaks seemed like such a transparent attempt to influence public opinion that the Justice Department said, "There seems to be an inappropriate effort to influence public opinion about this case." The DOJ itself has also had leaks indicating that Wilson would not face civil rights charges.
Then there's Wilson's testimony. Missouri law gives deference
to police when they say that they were in fear for their lives in a police-involved killing. Wilson had four hours
to present his case—his unbelievable
and hyperbolic case—that the unarmed teenager turned into some sort of monster before his very eyes. Four hours.
All of which adds up to a very unusual grand jury process engineered by McCulloch that resulted in a very unusual outcome.
How do we know it is rare for a prosecutor to manage a grand jury in this fashion? We know because the grand jury process has become pro forma in most jurisdictions and because prosecutors almost always get an indictment from them when they want one. On the federal level, FiveThirtyEight reported last night, "U.S. attorneys prosecuted 162,000 cases in 2010, the most recent year for which we have data. Grand juries declined to return in indictment in 11 of them." That’s about 0.01 percent of the time.
Finally, there was McCulloch's performance last night, which put him firmly in the role of defense attorney for Wilson, and demonstrated why this case should have gone to trial. McCulloch spent something like 45 minutes covering all the evidence presented to the grand jury, every detail step by step of how the shooting unfolded, every discrepancy in witnesses' statements. Then he released all that evidence publicly
, which he was not required by any means to do, but did apparently in an attempt to paint the grand jury process as fair. Here's the main problem
with what McCulloch did Monday night, as summed up by Noam Scheiber.
The problem with this is that we already have a forum for establishing the underlying facts of a case—and, no less important, for convincing the public that justice is being served in a particular case. It’s called a trial. It, rather than the post-grand jury press conference, is where lawyers typically introduce mounds of evidence to the public, litigate arguments extensively, and generally establish whether or not someone is guilty of a crime. By contrast, as others have pointed out, the point of a grand jury isn't to determine beyond a shadow of a doubt what actually happened. It's to determine whether there's probable cause for an indictment, which requires a significantly lower standard of proof. That McCulloch appeared to turn the grand jury into an exercise in sorting out the former rather than the latter suggested he wanted no part of a trial.
From all the available evidence we have, there's every indication that McCulloch manipulated this grand jury process to get the result he wanted—an exoneration of Wilson. Including this.
Prosecutor told #Ferguson grand jury on Friday: "I think you are going to make the right decision. I think you are very bright."
Can there be any question now what that "right decision" was, as far as McCulloch was concerned?