St. Louis County Prosecutor Bob McCulloch announces the grand jury's decision not to indict Ferguson police officer Darren Wilson in the August 9 shooting death on Michael Brown at the Buzz Westfall Justice Center in Clayton, Missouri, November 24, 2014
Following his long public hand washing and cheerful mocking of witnesses, St. Louis County Prosecutor Bob McCulloch stood by for a few minutes of questioning. It was a frustratingly brief exchange, during which McCulloch was
three times asked the one question that McCulloch had already said he could not answer: what was the actual vote count on the charges before the grand jury.
Thank you, "professional reporters" for wasting this unique opportunity to clear up a few matters.
But there are a few things they could have asked McCulloch. Things that needed to be said in front of a national audience, which you can read below the fold.
First, instead of asking McCulloch the vote breakdown, they might have asked him this:
Question: How many charges was the jury asked to consider, and how many would have needed to vote against any charge to keep it from becoming a "true bill" of indictment?
Answer: Infinite, and four
McCulloch gave the jury no instruction on what charges they should consider. Many sources have said that the jury could have considered first degree murder, second degree murder or various levels of manslaughter. True enough. They might have also considered illegal discharge of a firearm. Or assault. Or more or less anything.
On any charge considered, it would have taken nine votes to bring an indictment. We've been given the racial breakdown of the jury, which certainly suggests one answer to "how did they come to this conclusion," but it's what we'll never be told that's the real clue. With nine white jurors, it's easy to imagine that Wilson might have been protected by a handful of jurors who held onto a racist view of events. However, because of the way things were presented to the jury, confusion on any particular vote may have been generated by people pulling for a greater charge. We can't know, because the exact votes on any charge will never be released. And it's clear that, despite McCulloch's smirking protests about being "fair" this process was anything but normal.
Giving the grand jury no instruction is equivalent to throwing them into the deep end of the pool with no swimming lessons. They had to work it out for themselves. It's not unusual for the prosecutor to not suggest a specific charge, but it's almost unprecedented for the prosecutor to dump all the evidence on the jury and leave them to figure it out for themselves. Almost, unprecedented, but not quite.
Question: How many police officers have been indicted in shooting incidents since Bob McCulloch became prosecutor way back in 1991?
Answer: None
McCulloch is the son of a police officer who was shot in the line of duty. In his 24 years as prosecutor, he has never recommended charges against any police officer. How did that happen? It happened in large part because these cases are not handled like other cases.
Question: Had this been a completely different sort of incident, one in which an officer had been killed, would you have instructed the jury in the same way?
Answer: Oh, hell no.
In the majority of incidents—make that every other type of incident—McCulloch actively speaks with the jury, directing them in what to look for, discussing possible charges, clearing up issues, actively seeking an indictment. He didn't do that in this case.
In this case, the grand jury was given a mountain of evidence, and next to no help in how they should deal with it. It's exactly how McCulloch would not handle any other case. This "hands off" attitude wasn't just unusual, it's precisely a negation of what a prosecutor is asked to do. McCulloch didn't prosecute. This case was given very special treatment, treatment designed to promote the sort of confusion that leads to "no true bill."
The whole presentation to the grand jury was engineered not only to generate this outcome, but to do so in a way that uses the grand jury process to shield the true nature of what happened. It's a system that McCulloch knows well.
Another very good question that I forgot until it came up in comments: How is it that what the grand jury was told about Wilson's knowledge of the incident at the store involving cigars is completely at odds with the public testimony of the Ferguson police chief two days after the incident? How is it that Wilson having "made" Brown as a suspect in a robbery, called for backup, but that call is not recorded in any of the released transcripts of police communications? That whole section of McCulloch's statement, covering Wilson's extremely unusual testimony before the grand jury, is completely at odds with everything we were told for the last four months.
